Category: Health

Buckinghamshire County Council v Royal Borough of Kingston Upon Thames: CA 19 Apr 2011

Appeal against a decision refusing an application by the council to declare unlawful a decision of the the respondents to move SL from residential accommodation provided by the National Society for Epilepsy into other accommodation.
Held: The appeal failed: ‘The context here is an assessment under s.47 in which . . the duty is owed to SL to carry out a proper assessment of her needs. Nothing in that context requires BCC to be consulted before a care plan can be put into place. The obligation of a local authority to provide for those in need of care and attention due to age, illness or disability who are ordinary resident in their area is long-standing and is now established in s.21 of the 1948 Act. The 1990 Act did not alter this. Consequently BCC assumed responsibility for SL when she moved to private accommodation in their area and could have carried out their own s.47 assessment to resolve any issues between them and the LHA. This and the other factors . . point in my view decisively against the implication of the legal duty which is contended for.’

Judges:

Pill, Patten, Munby LJJ

Citations:

[2011] EWCA Civ 457, [2011] ACD 83, [2011] Fam Law 814, (2011) 14 CCL Rep 426, [2012] PTSR 854,

Links:

Bailii

Jurisdiction:

England and Wales

Local Government, Health

Updated: 06 September 2022; Ref: scu.432834

AA (Court of Protection: Capacity To Consent To Sexual Practices): CoP 15 Dec 2020

Issues: i) AA’s capacity to conduct proceedings and make decisions regarding autoerotic asphyxiation, internet and social media, consent to sexual relations and contact with others;
ii) AA’s best interests in those domains where he lacks capacity to decide; and
iii) Whether to authorise AA’s deprivation of liberty.

Judges:

The Hon Mr Justice Keehan

Citations:

[2020] EWCOP 66

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 06 September 2022; Ref: scu.659243

Forge Care Homes Ltd and Others, Regina (on The Application of) v Cardiff and Vale University Health Board and Others: SC 2 Aug 2017

The court was asked who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders responsible for at least some of it? The local authorities now appealed. The Health Boards and Secretary of State argue that the consistent view of the case law has been to respect the decisions of the NHS as to what services are necessary to meet all reasonable requirements, under section 3(1) of the 2006 Act, subject only to challenge on the usual judicial review grounds. Thus, it is said, there is nothing unusual in the NHS defining the limits of its responsibilities for itself. The proper construction of section 49(2) depends upon what the NHS decides is reasonably required. Against this, it is true that the courts have normally respected those decisions, subject only to challenges on conventional judicial review grounds; but in this case the NHS is arguing that it should be free to define the extent of the responsibilities of others, the local authorities or residents, by deciding for itself what is and what is not a nursing task, because all are agreed that there should be no funding gap between what is funded by the NHS and what is funded by local authorities with means-tested contributions from the clients. The limits of the local authorities’ responsibilities are defined by Parliament in section 49.
The local authorities’ primary argument was that the court should focus on the application rather than the interpretation of section 49. If it is accepted that the NHS must fund the presence of a nurse who is there to fulfil the legal or practical requirement that a nurse must be on duty at all times, then it follows that the NHS must fund everything that that nurse does while on call in this way.
Held: ‘stand-by’ time should have been included, and the Health Boards’ decisions were based on a misinterpretation of section 49(2) and must be quashed and re-taken in the light of the guidance given in para 44 of this judgment. The argument by the LAs failed: ‘The task of this court is to interpret the meaning of the words used by Parliament to impose a restriction on what local authorities may provide or arrange and thus indirectly to impose an obligation on the NHS to fund what the local authorities cannot provide or arrange. Interpretation must come before application. Once interpreted, it is for those on the ground to put that interpretation into practice.’ and: ”nursing care by a registered nurse’ covers (a) time spent on nursing care, in the sense of care which can only be provided by a registered nurse, including both direct and indirect nursing time as defined by the Laing and Buisson study; (b) paid breaks; (c) time receiving supervision; (d) stand-by time; and (e) time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which she has to provide.’

Judges:

Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Hodge

Citations:

[2017] UKSC 56, [2017] WLR(D) 559, [2017] PTSR 1140, UKSC 2016/0054

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC 20170426 am Video, SC 20170426 pm Video

Statutes:

Health and Social Care Act 2001 49, Care Homes (Wales) Regulations 2002 18(3), Social Services and Well-being (Wales) Act 2014

Jurisdiction:

Wales

Citing:

At Admn – Forge Care Homes Ltd and Others, Regina (on The Application of) v Cardiff and Vale University Health Board and Others Admn 11-Mar-2014
The claimant care home sought judicial review of decisions setting the rates for funded nursing care. The care homes’ challenge was on the basis that too restrictive an interpretation of ‘nursing care by a registered nurse’ had been adopted.
At CA – Forge Care Homes Ltd and Others v Cardiff and Vale University Health Board and Others CA 2-Feb-2016
The Health Trusts appealed against the quashing at first instance of the rates they were to pay for nursing care to certain residents in care homes. The Health Boards conceded, as they had done below, that they had been wrong to exclude the nurses’ . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – St Helens Borough Council v Manchester Primary Care Trust and Another CA 6-Aug-2008
The Trust and Local authority disputed responsibility for the care of a woman whose mental and psychological conditions required constant and expensive care.
Held: Responsibility for the decision fell on the Primary Care Trust as agent for the . .
Cited – Grogan, Regina (on the Application of) v Bexley NHS Care Trust and others Admn 25-Jan-2006
The claimant was elderly and in need of care in a nursing home. She claimed that her care needs had been assessed by an unlawful protocol applied by the health authority. She said that she qualified under the criteria for Continuing Health Care.
Lists of cited by and citing cases may be incomplete.

Health, Local Government

Updated: 04 September 2022; Ref: scu.591357

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 him from her care. As he had become an adult, E had displayed physically challenging behaviour to his carer and at school. He also said that he had been unlawfully deprived of his liberty.
Held: The court considered the safeguards introduced by the 2007 Act. It was agreed that E lacked capacity, and that the degree of confinement under which he was placed amounted to a deprivation of liberty. That deprivation had been unlawful. Carrying out a balancing exercise to decide on E’s best interests, it would be wrong to allow an immediate return to G. The Authority must devise a programme for increasing contact with G so that E could return when appropriate, with a review hearing later.

Judges:

Baker J

Citations:

[2010] EWHC 621 (Fam), [2010] EWHC 621 (COP), [2010] 2 FLR 294, [2010] Fam Law 703

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights 5 6, Mental Capacity Act 2005, Mental Health Act 2007

Citing:

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 – 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 – A Local Authority v MA and others; Re SA (Vulnerable Adult with Capacity: Marriage) FD 15-Dec-2005
Munby J discussed the court’s inherent powers to make orders to protect the welfare of a vulnerable adult: ‘It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests . . The particular form of order . .
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 – HL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Re DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She . .
Cited – GJ v The Foundation Trust and Another FD 20-Nov-2009
The statutory provisions of the 2007 Act for review of standard authorisations were matters that the Court of Protection should take into account in determining whether it should make an order authorising the deprivation of P’s liberty, and if so . .
Cited – In re S (Adult patient) (Inherent jurisdiction: Family life); Sheffield City Council v S FD 2002
A court could only grant an order permitting treatment despite the absence of an adult patient’s consent by virtue of the doctrine of necessity.
Munby J said: ‘in our multi-cultural and pluralistic society the family takes many forms . . The . .
Cited – In re M; ITW v Z and Others (Statutory Will) FD 12-Oct-2009
The court considered a request for a statutory will under the 2005 Act.
Held: the Court of Protection has no jurisdiction to rule on the validity of any will. However, Munby J made three points: (1) that the 2005 Act laid down no hierarchy as . .
Cited – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
Cited – Local Authority X v MM and Another; re MM (An Adult) FD 21-Aug-2007
The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does . .
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 – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
Cited – K And T v Finland ECHR 12-Jul-2001
ECHR Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to emergency care order concerning J.; No violation of Art. 8 with regard to emergency care order concerning M.; No violation of Art. 8 . .
Cited – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
Cited – St George’s Healthcare National Health Service Trust v S, Regina v Collins and Others ex parte S CA 8-May-1998
The authority wanted S to be admitted to hospital, if necessary against her will. She was pregnant and wanted to have a natural birth, even at great risk to herself and her baby. She had refused medical treatment for eclampsia. The caesarian had by . .
Cited – Secretary of State for the Home Department v E and Another HL 31-Oct-2007
The applicant, who was subject to a control order, complained that the respondent had failed as required to keep under review the possibility of a prosecution, and had renewed the order without satisfying that requirement.
Held: The appeal . .
Approved – London Borough of Enfield v SA, FA and KA 2010
McFarlane J considered whether hearsay statements from a person who lacked capacity were admissible under the 2007 Rules (‘COPR’).
Held: The power of the Court to ‘admit such evidence, whether written or oral, as it thinks fit’ pursuant to . .

Cited by:

Appeal from – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Appeal From – G v E and Others CA 4-May-2010
E, now aged 19, suffered a genetic condition leading to severe learning disability, and a lack of mental capacity. After being in the care of F, but displaying potentially violent behaviours, he was removed against his and F’s will to the care of . .
See Also – G v E and Others FD 21-Dec-2010
(Court of Protection) Baker J awarded costs against a local authority which had been guilty of misconduct which, he held, justified departure from the general rule. He observed: ‘Parties should be free to bring personal welfare issues to the Court . .
See Also – Manchester City Council v G and Others CA 2-Aug-2011
The Council had been found to have wrongfully deprived the applicant of his liberty. They appealed now against an award of costs made against them.
Held: The appeal failed. The judge the power to depart from the usual order made under rule 157 . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Health, Human Rights, Torts – Other

Updated: 04 September 2022; Ref: scu.431228

Nutricia Ltd, Regina (on The Application of) v The Secretary of State for Health: Admn 31 Jul 2015

Application for permission to apply for judicial review and, if granted, the substantive judicial review in a complex case concerning a decision adopted by the Defendant which expressed the ‘view’ that a yoghurt style food product called ‘Souvenaid’ produced by Nutricia Limited could not be classified as a food for special medical purposes

Judges:

Green J

Citations:

[2015] EWHC 2285 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Health, Agriculture

Updated: 03 September 2022; Ref: scu.550951

Modaresi, Regina (on The Application of) v Secretary of State for Health and Others: Admn 3 Mar 2011

The claimant sought judicial review of her detention under section 2 of the 1983 Act.
Held: The request was rejected. The tribunal had been correct to treat the original application as out of time. The Secretary of State’s decision was neither unreasonable nor in breach of her rights under the Convention, and an isolated failure by the trust did not give rise to a breach of article 5(4).

Judges:

Edwards-Stuart J

Citations:

[2011] EWHC 417 (Admin)

Links:

Bailii

Statutes:

Mental Health Act 1983 2, European Convention on Human Rights 5(4)

Cited by:

Appeal From – Modaresi, Regina (on The Application of) v Secretary of State for Health and Others CA 23-Nov-2011
The appellant had been detained under the 1983 Act. Her appeal had been declined as out of time, and she now appealed against rejection of her request for judicial review.
Held: The appeal failed, even though the application to the tribunal . .
At first instance – 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.

Health, Human Rights

Updated: 03 September 2022; Ref: scu.430285

P and Q v Surrey County Council: CA 28 Feb 2011

The appellant sisters, both with substantial learing disabilities appealed against a declaration that the arrangements made for their care by the respondent did not amount to a deprivation of their liberty. In either case, they would only be allowed to leave their residence under escort of a competent adult.
Held: The appeals failed.

Judges:

Mummery, Smith, Wilson LJJ

Citations:

[2011] EWCA Civ 190, [2012] PTSR 727, [2011] 2 FLR 583, [2011] Fam Law 475, [2011] MHLR 125, [2011] HRLR 19, [2011] UKHRR 584, [2012] Fam 170, [2012] 2 WLR 1056, [2011] 1 FCR 559, (2011) 14 CCL Rep 209

Links:

Bailii

Statutes:

European Convention on Human Rights 5, Mental Capacity Act 2005

Jurisdiction:

England and Wales

Citing:

Cited – Salford City Council v GJ, NJ and BJ (Incapacitated adults) FD 16-May-2008
The court considered the place of human rights considerations in local authority decisions regarding the care and placement of incapacitated adults.
Held: The situation should be reviewed at least annually and at shorter intervals as . .

Cited by:

Cited – P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 03 September 2022; Ref: scu.430079

St Helens Borough Council v Manchester Primary Care Trust and Another: CA 6 Aug 2008

The Trust and Local authority disputed responsibility for the care of a woman whose mental and psychological conditions required constant and expensive care.
Held: Responsibility for the decision fell on the Primary Care Trust as agent for the Secretary of State for Health, and the decision could not be made by the social services department alone. Cases such as this should not be resolved by expensive litigation. There was no gap between health care and social service care, only a line.

Judges:

May LJ, Scott Baker Lj, Sir Peter Gibson

Citations:

[2008] EWCA Civ 931, Times 06-Oct-2008, [2009] PTSR 105

Links:

Bailii

Statutes:

National Health Service Act 2006 1 2 3

Jurisdiction:

England and Wales

Cited by:

Cited – Forge Care Homes Ltd and Others, Regina (on The Application of) v Cardiff and Vale University Health Board and Others SC 2-Aug-2017
The court was asked who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders . .
Lists of cited by and citing cases may be incomplete.

Health, Local Government

Updated: 02 September 2022; Ref: scu.272250

Lindsay v Wood: QBD 16 Nov 2006

The claimant suffered severe brain injury in a crash. The parties sought guidance form the court as to his legal capacity.
Held: The fact that a party may be particularly susceptible to exploitation was a relevant element when considering his capacity to act, though alone it would not usually be enough to find a lack of capacity. In this case the claimant was declared to be a patient within the Act and the Rules.

Judges:

Stanley Burnton J

Citations:

[2006] EWHC 2895 (QB), Times 08-Dec-2006

Links:

Bailii

Statutes:

Mental Health Act 1983, Civil Procedure Rules 21

Jurisdiction:

England and Wales

Citing:

Applied – 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 – Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice

Updated: 02 September 2022; Ref: scu.246082

Grogan, Regina (on the Application of) v Bexley NHS Care Trust and others: Admn 25 Jan 2006

The claimant was elderly and in need of care in a nursing home. She claimed that her care needs had been assessed by an unlawful protocol applied by the health authority. She said that she qualified under the criteria for Continuing Health Care.
Held: The question for the court was whether in carrying out its assessment the Defendant had taken a lawful approach in, and by applying, its criteria, and whether it did not apply the primary health need approach. The criteria used were flawed as alleged.

Judges:

Charles J

Citations:

[2006] EWHC 44 (Admin), [2006] LGR 491

Links:

Bailii

Statutes:

National Health Service Act 1977 17

Jurisdiction:

England and Wales

Citing:

Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Regina v North Derbyshire Health Authority ex parte Kenneth Graeme Fisher Admn 11-Jul-1997
The court considered the duty of the authority to take account of guidance issued by the Secretary of State: ‘If the circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it . .

Cited by:

Cited – Green, Regina (on the Application of) v South West Strategic Health Authority Admn 28-Oct-2008
The claimant said that whilst resident in a care home, her care should have been paid for as health care under ‘Continuing Health Care.’ She said that the decision maker had failed to comply with the Health Authorities guidelines.
Held: In . .
Cited – Forge Care Homes Ltd and Others, Regina (on The Application of) v Cardiff and Vale University Health Board and Others SC 2-Aug-2017
The court was asked who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders . .
Lists of cited by and citing cases may be incomplete.

Health, Benefits, Local Government

Updated: 02 September 2022; Ref: scu.238156

Regina (Longstaff) v Newcastle upon Tyne NHS Primary Care Trust: QBD 8 Dec 2003

The complainant sought treatment with recombinant coagulation factor VIII for his haemophilia but was refused.
Held: The trust was not required to seek further information from the claimant as to his reasons for declining other forms of treatment before refusing his application. The failure did not create an unfair decision. It was for the patient to set out reasons why any discretion should be exercised in his favour.

Judges:

Charles J

Citations:

Times 15-Jan-2004, [2003] EWHC 3252 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 02 September 2022; Ref: scu.193443

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 contended that his continued detention infringed his human rights.
Held: Campbell’s case required s73 to operate in two stages. The decision was made for a release, subject to conditions. The second stage was met once those arrangements were in place, and at that point the conditional release was ordered. Article 5.4 required a speedy decision, and there was a clear potential conflict. To avoid that conflict Campbell might no longer be followed. Instead, a provisional decision directing a conditional discharge should be made, but that direction should be deferred to allow for arrangements for psychiatric treatment in the community. The health authority was under a duty to provide assistance. If no such help was forthcoming, the tribunal might then be obliged to decide to continue the detention. That would avoid incompatibility.

Judges:

Lord Justice Jonathan Parker

Citations:

Times 24-May-2002, Gazette 20-Jun-2002, [2002] EWCA Civ 646, [2003] QB 320, [2002] 3 WLR 967

Links:

Bailii

Statutes:

Mental Health Act 1983 73 117, European Convention on Human Rights 3 5.4

Jurisdiction:

England and Wales

Citing:

No longer compliant – Regina v Oxford Regional Mental Health Review Tribunal, Ex parte Secretary of State for the Home Department (Campbell’s Case) HL 1988
The House decided that section 73 of the 1983 Act provided a two-stage process in relation to a patient’s conditional discharge. The tribunal first decides that it will direct the discharge subject to conditions, but defers giving the direction so . .
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 . .
Appeal from – Regina (on the Application IH) v Nottinghamshire Healthcare NHS Trust and Others Admn 5-Dec-2001
Whether the 1983 Act, and in particular its provisions governing the conditional discharge and deferral of conditional discharge of ‘restricted patients’, are compatible with Article 5 of the European Convention on Human Rights. . .

Cited by:

Cited – Regina (C) v Secretary of State for the Home Department CA 15-May-2002
A mental health review tribunal had recommended the conditional release of the applicant, a restricted patient in a high security hospital. A community social worker’s report was only later made available to the tribunal.
Held: There was no . .
Cited – Farnell, Regina (on Application By) v Criminal Cases Review Commission Admn 15-Apr-2003
The appellant sought judicial review of the respondents refusal to refer his case back to the Court of Appeal.
Held: The Commission had misunderstood the way in which the Court of Appeal worked, by anticipating that it would reconsider the . .
Appeal from – Regina v Secretary of State for the Home Department and Another ex parte IH HL 13-Nov-2003
The appellant had been found unfit to plead after assaulting his son, and he had been detained under the 1964 Act. He alleged his detention was in breach of his right to a fair trial. His release had been authorised subject to the appointment of a . .
Appealed to – Regina (on the Application IH) v Nottinghamshire Healthcare NHS Trust and Others Admn 5-Dec-2001
Whether the 1983 Act, and in particular its provisions governing the conditional discharge and deferral of conditional discharge of ‘restricted patients’, are compatible with Article 5 of the European Convention on Human Rights. . .
Cited – 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 . .
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, Human Rights

Updated: 02 September 2022; Ref: scu.170307

Hertfordshire County Council, Regina (on The Application of) v JM: CA 15 Feb 2011

The court was asked which local authority had responsibility to provide support to a patient on his discharge after a period of detention under section 3 of the 1983 Act.

Judges:

Carnwath, Rimer, Sullivan LJJ

Citations:

[2011] EWCA Civ 77, [2011] BLGR 536, [2011] MHLR 76, [2011] Med LR 181, [2011] PTSR 1623, (2011) 119 BMLR 27, (2011) 14 CCL Rep 224, [2011] ACD 60

Links:

Bailii

Statutes:

Mental Health Act 1983 3

Jurisdiction:

England and Wales

Cited by:

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

Health, Local Government

Updated: 01 September 2022; Ref: scu.428862

In re TM: FD 12 Dec 2013

Application by an NHS Trust for the consent or approbation of the court to proposed medical treatment of a seven-year-old child. The child was born with multiple medical problems, and as a result, very considerable mental and physical developmental delay. She has received a great deal of help and treatment throughout her life from the hospital of the NHS Trust. There had been a good working relationship between the staff and treating doctors and the parents, and in particular with the mother of the child, with whom she lived. ‘The purpose of these few words is solely to explain why I am imposing temporarily what has just been described as a blanket injunction on any reporting whatsoever – whether in a newspaper, by broadcast, or in any form of web-based communication – of the existence of these proceedings or anything that has taken place in court today. I do so because that is, of course, a very strong and grave restriction on the Convention right of freedom of expression which underpins the democratic rights of us all. These proceedings were listed for hearing in public, and every single word of them today has taken place in public, with journalists present in the court room. I am now delivering this short judgment in public, but this judgment, like everything else that has been said today, will also be the subject of the same temporary blanket restraint.’

Judges:

Holman J

Citations:

[2013] EWHC 4043 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Health, Children, Media

Updated: 31 August 2022; Ref: scu.519045

Re A (A Child): FD 12 Feb 2015

An NHS Trust, sought declarations in relation to Child A, who had been declared clinically dead. That declaration was confirmed by two brain stem tests, the latter taking place, confirming the results of the earlier test and, therefore, supporting the declaration i.e. that brain stem death had occurred at 10.10am on that date. He had choked on a satsuma stem. The request was opposed by the parents.

Judges:

Hayden J

Citations:

[2015] EWHC 443 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Health

Updated: 29 August 2022; Ref: scu.543961

AH v West London MHT: UTAA 29 Jul 2010

Prisoner in secure hospital – application for public hearig of request for discharge – refused

Citations:

[2010] UKUT 264 (AAC)

Links:

Bailii

Statutes:

Mental Health Act 1983, European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

See Also – AH v West London MHT (J) UTAA 17-Feb-2011
Order for public hearing of detention review under Mental Health Act – at request of AH. . .
Cited – Regina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 23 August 2022; Ref: scu.423213

Regina (RB) v First Tier Tribunal (Review): UTAA 28 May 2010

The tribunal may review its own decision, where for example a clear error has been made (section 9).

Judges:

Lord Justice Carnwath SPT

Citations:

[2010] UKUT 160 (AAC), [2010] MHLR 192, [2010] AACR 41

Links:

Bailii

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.

Administrative, Litigation Practice, Health

Updated: 23 August 2022; Ref: scu.423181

WS v The Mental Health Tribunal for Scotland: SCS 20 Aug 2010

Second Division, Inner House – appeal against a decision of the Mental Health Tribunal for Scotland (the Tribunal) to refuse to make an order under section 220(5) of the the 2003 Act returning the appellant from the State Hospital, Carstairs to Linden House, Yorkshire where he was formerly detained.

Judges:

Lord Justice Clerk, Lord Brodie, Lord Marnoch

Citations:

[2010] ScotCS CSIH – 74

Links:

Bailii

Statutes:

Mental Health (Care and Treatment) (Scotland) Act 2003

Scotland, Health

Updated: 22 August 2022; Ref: scu.421623

Salford City Council v BJ (Incapacitated Adult): FD 11 Dec 2009

Judges:

Munby LJ

Citations:

[2009] EWHC 3310 (Fam), [2010] Fam Law 242, [2010] 1 FLR 1373, (2010) 13 CCL Rep 65

Links:

Bailii

Citing:

See Also – Salford City Council v GJ, NJ and BJ (Incapacitated adults) FD 16-May-2008
The court considered the place of human rights considerations in local authority decisions regarding the care and placement of incapacitated adults.
Held: The situation should be reviewed at least annually and at shorter intervals as . .

Cited by:

Cited – In re X and Others (Deprivation of Liberty) CoP 7-Aug-2014
inreX_dolCoP1408
The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 22 August 2022; Ref: scu.421348

G v E and Others: CA 16 Jul 2010

E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, his sister sought an order for his return to F, his carer for several years. The judge found his detention unlawful, but ordered only a staged return. G appealed. The Official Solicitor, intervening, said that the issue amounted to ‘was the judge right or wrong to reject the appellant’s submission that Article 5 of the European Convention on Human Rights (ECHR) places distinct threshold conditions which have to be satisfied before a person accepted to be lacking capacity can be detained in his or her best interests under the statutory regime established by the Mental Capacity Act 2005 (MCA 2005)?’
Held: Baker J’s judgment on the issue was correct, and the appeal failed. The 2007 Act satisfied the requirement for such detentions to bne according to law and was ECHR Article 5 compliant. There was no question of incompatibility. The appeal was based upon arguments which may have applied had E suffered mental illness, but he did not. The evidence of impairment was essentially paediatric.

Judges:

Sir Nicholas Wall P, Thorpe J, Hedley J

Citations:

[2010] EWCA Civ 822, [2010] 2 FLR 294, [2010] Fam Law 703, [2010] 4 All ER 579

Links:

Bailii

Statutes:

European Convention on Human Rights 5 8, Mental Capacity Act 2005, Mental Health Act 2007

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .
Leave to appeal – G v E and Others CA 4-May-2010
E, now aged 19, suffered a genetic condition leading to severe learning disability, and a lack of mental capacity. After being in the care of F, but displaying potentially violent behaviours, he was removed against his and F’s will to the care of . .
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 – 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 – 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 – 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 . .
Cited – Witold Litwa v Poland ECHR 4-Apr-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
A . .
Cited – Varbanov v Bulgaria ECHR 5-Oct-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (abuse of right of petition); Violation of Art. 5-1; Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – . .
Cited – HL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Surrey County Council v MB and Others FD 9-Oct-2007
The MCA 2005 had specifically codified the approach and principles previously recognised and applied under the inherent jurisdiction . .
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 – St George’s Healthcare National Health Service Trust v S (No 2); Regina v Collins and Others ex parte S (No 2) CA 3-Aug-1998
The patient came to hospital pregnant. The doctors advised a caesarian section but she refused it. The doctors said that she lacked capacity and applied to the court for leave to proceed.
Held: It was wrong to apply to the court to override . .
Cited – Gil v Baygreen Properties Ltd CA 5-Jul-2002
The applicant had defended an action for possession for arrears of rent, and counterclaimed for damages for failure to repair. A compromise was put to the court, and the court took that as consent and made a possession order. The tenant appealed. . .
Cited – G v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .

Cited by:

See Also – G v E and Others FD 21-Dec-2010
(Court of Protection) Baker J awarded costs against a local authority which had been guilty of misconduct which, he held, justified departure from the general rule. He observed: ‘Parties should be free to bring personal welfare issues to the Court . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 21 August 2022; Ref: scu.420800

Green, Regina (on the Application of) v South West Strategic Health Authority: Admn 28 Oct 2008

The claimant said that whilst resident in a care home, her care should have been paid for as health care under ‘Continuing Health Care.’ She said that the decision maker had failed to comply with the Health Authorities guidelines.
Held: In these circumstances it was proper to admit further evidnce about the background to the decision, and in the light of that additional evidnce in this case, there was nothing to establish that the review panel had departed from the Authority’s need test. The claim failed.

Judges:

Wyn Williams J

Citations:

[2008] EWHC 2576 (Admin)

Links:

Bailii

Statutes:

National Health Service Act 1977 3, National Assistance Act 1948 21

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Westminster City Council Ex Parte Ermakov CA 14-Nov-1995
The applicant, having moved here from Greece, applied for emergency housing. The Council received no reply to its requests for corroboration sent to Greece. Housing was refused, but the officer later suggested that the real reason was that the . .
Cited – Grogan, Regina (on the Application of) v Bexley NHS Care Trust and others Admn 25-Jan-2006
The claimant was elderly and in need of care in a nursing home. She claimed that her care needs had been assessed by an unlawful protocol applied by the health authority. She said that she qualified under the criteria for Continuing Health Care.
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Leung v Imperial College of Science, Technology and Medicine Admn 5-Jul-2002
Silber J considered the circumstances in which it was proper to take into account additional evidence surrounding the circumstances in which a decision under challenge had been made. He added to those in Ermakov the issue of whether it would be just . .
Lists of cited by and citing cases may be incomplete.

Health, Administrative

Updated: 20 August 2022; Ref: scu.277291

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 detention.
Held: The conditions were inextricably linked to the release, and though there was a form of duty on the respondent to make arrangements, no duty to release him arose until the condition had been met. The duty to make arrangements was not absolute, and there was no breach in the present failure.

Citations:

[2004] EWCA Civ 378, Times 13-May-2004, Gazette 03-Jun-2004, [2004] BLGR 743, [2004] MHLR 201

Links:

Bailii

Statutes:

Mental Health Act 1983 37 41

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .
Cited – Regina v H (On appeal from the Court of Appeal (Criminal Division)) HL 30-Jan-2003
The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 20 August 2022; Ref: scu.196774

Rabone and Another v Pennine Care NHS Trust: CA 21 Jun 2010

The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed in its article 2 duty to respect her right to life.
Held: The decision in Savage related to a detained patient. The fact that the claimant’s daughter was not a detained patient did alter the Trust’s duties. Article 2 does not impose upon the state an operational obligation towards all persons who are at ‘real and immediate risk’ of death, and health trusts do not have the article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a ‘real and immediate’ risk of death.
Had there been a duty found, the earlier settlement had provided an adequate remedy.

Judges:

Rix, Stanley Burnton, Jackson LJJ

Citations:

[2010] EWCA Civ 698, [2010] WLR (D) 152, [2011] 3 WLR 603, [2011] QB 1019, (2010) 115 BMLR 191, [2010] Inquest LR 105, [2011] PTSR 1028, [2010] Med LR 376, [2010] MHLR 413, [2010] PIQR Q4

Links:

Bailii, WLRD

Statutes:

Human Rights Act 1998 7, European Convention on Human Rights 2, Law Reform (Miscellaneous Provisions) Act 1934, Fatal Accidents Act 1976, Mental Health Act 1983

Jurisdiction:

England and Wales

Citing:

Appeal from – Rabone and Another v Pennine Care NHS Trust QBD 23-Jul-2009
The claimant’s daughter had been a voluntary patient at a mental hospital. She committed suicide when on home leave from a secure ward. The claimant now said that the hospital had acted incompatibly with their daughter’s human rights, in releasing . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – LCB v United Kingdom ECHR 9-Jun-1998
The applicant’s father had been present on Christmas Island during British nuclear tests. She was diagnosed with leukaemia. She claimed the UK had been should have warned her parents of the risks associated with exposure to radiation and monitored . .
Cited – Powell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
Cited – Keenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
Cited – Kilinc And Others v Turkey ECHR 7-Jun-2005
kilinc_turkeyECHR05
A state authority may have a positive obligation to prevent foreseeable suicides amongst conscripts to its armed forces. . .
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 – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – Ataman v Turkey ECHR 27-Apr-2006
The Court set out the need to supervise soldiers to whom weapons were entrusted and to prevent suicides. Since the carrying of weapons was involved, the authorities could be expected to show particular diligence and adopt a suitable system for . .
Cited – Renolde v France ECHR 16-Oct-2008
A prisoner with mental health problems committed suicide during pre-trial detention. It was said that the state had infringed his article 2 right.
Held: The court noted the vulnerability of persons in custody, especially those who were . .
Cited – Mitchell and Another v Glasgow City Council HL 18-Feb-2009
(Scotland) The pursuers were the widow and daughter of a tenant of the respondent who had been violently killed by his neighbour. They said that the respondent, knowing of the neighbour’s violent behaviours had a duty of care to the deceased and . .
Cited – Eckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
Cited – Caraher v The United Kingdom ECHR 11-Jan-2000
The applicant sought compensation for the killing of her husband by soldiers in Northern Ireland. She had previously brought a claim against the Ministry of Defence for aggravated damages in respect of the same matter. That claim had been settled . .

Cited by:

Appeal from – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health, Personal Injury, Negligence

Updated: 19 August 2022; Ref: scu.417086

Mwanza, Regina (on The Application of) v London Borough of Greenwich and Another: Admn 15 Jun 2010

The claimant had been discharged from inpatient treatment under the 1983 Act, and now sought to oblige the respondent local authorities to provide the assistance he needed.

Judges:

Hickinbottom J

Citations:

[2010] EWHC 1462 (Admin), (2010) 13 CCL Rep 454, [2010] BLGR 868, [2010] ACD 86, [2011] PTSR 965

Links:

Bailii

Statutes:

Mental Health Act 1983 3 117

Jurisdiction:

England and Wales

Cited by:

Cited – Richards v Worcestershire County Council and Another ChD 28-Jul-2016
Application for claim to be struck out. . .
Lists of cited by and citing cases may be incomplete.

Health, Housing

Updated: 19 August 2022; Ref: scu.416793

G v E and Others: CA 4 May 2010

E, now aged 19, suffered a genetic condition leading to severe learning disability, and a lack of mental capacity. After being in the care of F, but displaying potentially violent behaviours, he was removed against his and F’s will to the care of the local authority. G, his sister had applied for his return home, or to F. An order had been made that pending a review and arrangements for his return, E should stay with the local authority. G now renewed her application for permission to appeal.
Held: Permission was granted on several grounds, and the court expressed a strong desire that it should be listed urgently.

Judges:

Lord Neuberger MR, Munby LJ

Citations:

[2010] EWCA Civ 548

Links:

Bailii

Statutes:

European Convention on Human Rights 5 8

Jurisdiction:

England and Wales

Citing:

Appeal From – 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 – 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 – 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 by:

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

Health

Updated: 19 August 2022; Ref: scu.416783

TTM v London Borough of Hackney and Others: Admn 11 Jun 2010

The claimant had said that his detention under the 1983 Act was unlawful, and that the court should issue a writ of habeas corpus for his release. Having been released he sought damages on the basis that his human rights had been infringed. The admission had been made despite the claimant’s brother having notified the defendant of his objections under 11(4), the hospital had made the order without reference to him.
Held: The claim failed.

Judges:

Collins J

Citations:

[2010] EWHC 1349 (Admin), [2010] Med LR 362, [2010] ACD 78

Links:

Bailii

Statutes:

Mental Health Act 1983 3 139, Human Rights Act 1998, European Convention on Human Rights 5 8

Jurisdiction:

England and Wales

Citing:

Cited – E, Regina (on the Application of) v Bristol City Council Admn 13-Jan-2005
The patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to . .
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 . .
Cited – Regina v Managers of South Western Hospital and Another, Ex Parte M QBD 24-Mar-1993
The patient was detained on the application of an AMHP. In purported pursuance of section 11(4) the AMHP had consulted the patient’s mother as her nearest relative. However, the patient’s mother was not ordinarily resident in the UK, and, according . .
Cited – Prison Officers Association v Iqbal CA 4-Dec-2009
The claimant, a prisoner, alleged false imprisonment. The prison officers had taken unlawful strike action leaving him to be confined within his cell and unable to be involved in his normal activities. In view of the strike, a governor’s order had . .

Cited by:

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

Torts – Other, Health

Updated: 19 August 2022; Ref: scu.416634

Re AJ: CoP 6 Oct 2015

Application by the respondent for the court to reconsider two orders that were made on the papers. The first order discharged him as his daughter’s deputy for property and affairs and the second order appointed a panel deputy to act in his place.

Judges:

Lush SJ

Citations:

[2015] EWCOP 62

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 18 August 2022; Ref: scu.552893

Regina (on the Application of ‘S’) v the Secretary of Statefor the Home Department: CA 4 Apr 2003

The patient had been released on licence from prison. He later refused treatment for mental illness and was detained under the 1983 Act, though still on licence. His probation obtained the revocation of his licence, and he was recalled. He did not know of the revocation of his licence, but absconded from the hospital and re-arrested.
Held: The section allowed that either a licensee was detained under a court sentence or at large. For the purposes of calculating a revised licence expiry date, the time spend detained in the mental hospital counted as time spent unlawfully at large and did not count to reduce the time to be spent in prison.

Judges:

Lord Justice Rix Lord Justice Simon Brown Lord Justice Scott Baker

Citations:

[2003] EWCA Civ 426

Links:

Bailii

Statutes:

Prison Act 1952 49(2), Mental Health Act 1983 3

Jurisdiction:

England and Wales

Citing:

Cited – Regina (S) v Secretary of State for the Home Department QBD 5-Nov-2002
The applicant was mentally ill, and had at various times received inpatient treatment, and also detained. After conviction for harassment offences he was imprisoned, but then again hospitalized and detained under s3 whilst released in licence. Upon . .

Cited by:

Cited – Regina (S) v Secretary of State for the Home Department QBD 5-Nov-2002
The applicant was mentally ill, and had at various times received inpatient treatment, and also detained. After conviction for harassment offences he was imprisoned, but then again hospitalized and detained under s3 whilst released in licence. Upon . .
Lists of cited by and citing cases may be incomplete.

Health, Prisons

Updated: 16 August 2022; Ref: scu.181398

MS, R (on the application of) v Collins and Another: CA 30 Jul 1998

Judge LJ, giving the judgment of the court, said this: ‘In our judgment while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment. Although human, and protected by the law in a number of different ways set out in the judgment in In re MB (An Adult: Medical Treatment) [1997] 2 FCR 541, an unborn child is not a separate person from its [sic] mother. Its need for medical assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant. The declaration in this case involved the removal of the baby from within the body of her mother under physical compulsion. Unless lawfully justified this constituted an infringement of the mother’s autonomy. Of themselves the perceived needs of the foetus did not provide the necessary justification.’

Judges:

Butler Sloss, Judge, Robert Walker LJJ

Citations:

[1998] EWCA Civ 1349, [1999] Fam 26

Links:

Bailii

Jurisdiction:

England and Wales

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

Health

Updated: 16 August 2022; Ref: scu.642149

B (A Local Authority) v RM and Others: FD 15 Oct 2010

The court was asked whether and if so, on what basis a Court considering an application for a care order in respect of a young person with lifelong disabilities should transfer the case to the Court of Protection to be dealt with under the Mental Capacity Act, 2005, rather than the Children Act, 1989.

Judges:

Hedley J

Citations:

[2010] EWHC B31 (Fam)

Links:

Bailii

Statutes:

Mental Capacity Act 2005, Children Act 1989

Jurisdiction:

England and Wales

Children, Health

Updated: 16 August 2022; Ref: scu.430387

In re L (A Minor) (Commercial Surrogacy): FD 8 Dec 2010

The child had been born in Illinois as a result of a commercial surrogacy arrangement which would have been unlawful here. The parents applied for a parental order under the 2008 Act.
Held: The order was made, but in doing so he court had to give retrospective approval to the payments. Hedley J emphasised that the consequence of statutory developments is that ‘welfare is no longer merely the Court’s first consideration but becomes its paramount consideration.’
Hedley J said: ‘It has to be accepted that in implementing the new 2008 Act, Parliament must be taken to have had in mind the accumulated jurisprudence under the 1990 Act. It is therefore significant that, with one material exception, section 54 of the 2008 Act reproduces section 30 of the 1990 Act. The exception is the widening of the categories of those who may apply and the making of transitional provisions for those who have only become entitled to apply on the coming into force of the 2008 Act. It necessarily follows, with one significant change (relating to welfare), that the law in respect of parental orders is not affected by the 2008 Act save as is noted above.
The significant change in the 2008 Act other than the enlargement of the scope of applicants relates to the welfare test. The effect of the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (SI 2010/985) is to import into section 54 applications the provisions of section 1 of the Adoption and Children Act 2002 . . What has changed, however, is that welfare is no longer merely the court’s first consideration but becomes its paramount consideration.
The effect of that must be to weight the balance between public policy considerations and welfare . . decisively in favour of welfare. It must follow that it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making.’

Judges:

Hedley J

Citations:

[2010] EWHC 3146 (Fam), [2011] 1 FLR 1423, [2011] Fam Law 241, [2011] 2 WLR 1006, [2011] 1 Fam 106

Links:

Bailii

Statutes:

Adoption and Children Act 2002 1, Human Fertilisation and Embryology Act 2008

Jurisdiction:

England and Wales

Cited by:

Cited – Re IJ (A Child) (Foreign Surrogacy Agreement Parental Order) FD 19-Apr-2011
The court gave reasons for making a parental order under the 2008 Act in favour of the applicants where a child had been born under surrogacy arrangements which were lawful in the Ukraine where he was born, but would have been unlawful here because . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .
Cited – D and L (Minors Surrogacy), Re FD 28-Sep-2012
The children had been born in India to a surrogate mother. The biological father and his civil partner sought a parental order. The mother could not be found to give her consent. She had been provided anonymously through a clinic.
Held: The . .
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Lists of cited by and citing cases may be incomplete.

Health, Children

Updated: 16 August 2022; Ref: scu.430398

Regina v Grant: CACD 22 Nov 2001

A jury had found, under section 4(5) of the 1964 Act as amended, that the defendant was unfit to plead. The court considered section 5 of the 1964 Act.
Held: A judge of the Crown Court is obliged under the section to make a mandatory order containing restrictions on the liberty of the accused person where the accused person has been found to have committed an act which constituted the actus reus of murder where the person was indicted for murder without there being any determination by an independent and impartial tribunal as to whether the appropriate count was one of murder or manslaughter. It was submitted that the provision is incompatible with articles 5.1(e) and 6.1 of the Convention.
Richards J said: ‘Subject to the concern expressed below, it is not unreasonable for Parliament to have decided to lay down a mandatory requirement of admission to hospital for a person who has been charged with murder, has been found to have done the act charged, but is under a disability so as to be unfit to be tried; and detention in those circumstances is not to be regarded as ‘arbitrary’ for the purposes of Article 5(1)(e). The right to make immediate application to the MHRT and the other protections operating following admission to hospital ensure compliance with Article 5(4)’ and
Richards J continued: ‘The point of concern is whether the procedures give proper effect to the second of the conditions laid down for detention under Article 5(1)(e). To adopt the formulation in R (H) v. London North and East Mental Health Review Tribunal, ‘the test is whether it can be reliably shown that the [person] suffers from a mental disorder sufficiently serious to warrant detention’. The procedures under the 1964 Act are not directed specifically to that question. The issue under section 4 is whether the defendant is fit to be tried, which involves consideration of whether the defendant has sufficient intellect to instruct his legal team, to plead to the indictment, to challenge jurors, to understand the evidence and to give evidence. Those criteria do not correspond directly to the criteria for a mental disorder sufficiently serious to warrant detention, and it may be possible for a person to be found unfit to be tried without his suffering from a mental disorder sufficiently serious to warrant detention. Yet once a person facing a charge of murder has been found to be unfit to be tried, there is no further consideration of his mental condition under the statutory procedures prior to admission to hospital. If the jury find under section 4A(2) that he did the act charged, it is mandatory for the judge to make an admission order under s.5. The judge cannot consider whether such an order is justified on the medical evidence. Thus no-one is required specifically to address, prior to the person’s detention, the question whether he suffers from a mental disorder sufficiently serious to warrant detention. This feature of the procedure does raise the question whether detention is ‘arbitrary’ in the sense explained by the European Court of Human Rights in Winterwerp and Johnson.

It seems to us that the question is one of some difficulty. The answer to it may lie, but does not necessarily do so, in Mr Eadie’s submission that this is a difficult and complex area where Parliament has carried out the requisite balancing exercise and has concluded that, where it has been found by a jury that a person is unfit to be tried and has done the act charged as murder, the automatic consequence ought to be admission to hospital as prescribed in s.5 (subject to the person’s right to make immediate application to the MHRT and to the other protections afforded to a person subject to detention under these provisions); that the court should afford a measure of deference to Parliament in such a field; and that in all the circumstances the procedure is not to be stigmatised as arbitrary for the purposes of Article 5.

In the circumstances of the present case, however, it is unnecessary for us to reach any conclusion on that issue, since we are satisfied on the particular facts that the conditions for detention, albeit not considered in terms under the statutory procedure, were in fact met. All the experts who gave evidence in the s.4A proceedings were of the view that the appellant suffered from mental impairment within the meaning of the Mental Health Act 1983. They did not consider the question of disposal because it was not necessary for them to do so. [The medical history was considered]. We are also told that, though no report is available, the Secretary of State understands from the clinical staff at the hospital that they believe that the appellant’s mental impairment would justify her continuing detention in hospital and that there is treatment available which is alleviating her condition. Looking at the evidence as a whole, we take the view that the appellant did suffer from a mental disorder sufficiently serious to warrant detention and that the conditions for initial detention under Article 5(1)(e) were therefore met. That is a sufficient basis for rejecting this part of the appellant’s case. ‘

Judges:

Rose LJ VP, Richards J, Pitchford J

Citations:

[2001] EWCA Crim 2611, [2002] MHLR 41, [2002] 1 Cr App R 38,, [2002] QB 1030, [2002] 2 WLR 1409, [2002] Crim LR 403

Links:

Bailii

Statutes:

Criminal Procedure (Insanity) Act 1964 5, European Convention on Human Rights 6 6

Jurisdiction:

England and Wales

Cited by:

Cited – Juncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
Cited – Juncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
Lists of cited by and citing cases may be incomplete.

Crime, Health, Human Rights

Updated: 15 August 2022; Ref: scu.271134

Mazhar v The Lord Chancellor: CA 2 Oct 2019

Appeal against an order dismissing the Appellant’s claim for a declaration that an order made by Mostyn J authorising his removal to, and detention in, a hospital was an unlawful violation of his rights under Article 5.
Held:

Judges:

Sir Terence Etherton MR, Lord Justice Singh and Lord Justice Baker

Citations:

[2019] EWCA Civ 1558

Links:

Bailii, Judiciary

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Health, Human Rights

Updated: 15 August 2022; Ref: scu.641798

Condliff, Regina (on The Application of) v North Staffordshire Primary Care Trust: Admn 7 Apr 2011

The patient sought judicial review of the decision not to fund laparoscopic gastric by-pass surgery. He said that the policy by which all such requests are to be considered and determined exclusively by reference to clinical factors, infringed his Article 8 rights.
Held: The claim failed.

Judges:

Waksman QC J

Citations:

[2011] EWHC 872 (Admin)

Links:

Bailii

Statutes:

National Health Service Act 2006, European Convention on Human Rights8

Jurisdiction:

England and Wales

Cited by:

Appeal from – Condliff, Regina (on The Application of) v North Staffordshire Primary Care Trust CA 27-Jul-2011
the claimant, a morbidly obese man, made a funding request to the trust for gastric surgery. This was refused because he did not meet the trust’s policy of offering funding to people who had a body mass index which exceeded a certain level. The . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 14 August 2022; Ref: scu.432845

M v B and Others: FD 28 Jul 2005

A declaration was sought that a woman of 23 lacked the necessary capacity to marry.
Held: A declaration and injunction was granted to prevent the marriage. Even though there was a substantial disagreement of fact, a part 8 procedure was correct.

Judges:

Sumner J

Citations:

Times 10-Aug-2005, [2005] EWHC 1681 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Family, Health

Updated: 14 August 2022; Ref: scu.408706

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.

Judges:

Floyd LJ

Citations:

[2014] EWCA Civ 1176

Links:

Bailii

Jurisdiction:

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 by:

Leave – 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 . .
Leave to Appeal CA – 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.

Health, Litigation Practice

Updated: 11 August 2022; Ref: scu.547016

G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust: Admn 20 May 2008

The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to support as rational the imposition of the rules. Having a mental illness is not a ‘status’ within human rights law. ‘there could be cases, though on the evidence we would expect them to be rare, in which the protection of mental health requires that facilities to smoke be made available. As the ECHR stated in Bensaid, mental health is associated with moral integrity and respect for mental stability may engage article 8. The Rampton policy document does provide for exceptions, though they appear to be of narrow ambit. A terminally-ill patient may not be able to venture outside. The expression ‘acute psychiatric condition’ is defined, with respect, imprecisely, as may be inevitable, but it does confer a discretion upon the responsible medical staff.’

Judges:

Pill LJ, Silber J

Citations:

[2008] EWHC 1096 (Admin), Times 28-May-2008, [2008] ACD 80, (2008) 11 CCL Rep 620, [2009] PTSR 218, [2008] UKHRR 788, [2008] MHLR 150, [2008] HRLR 42

Links:

Bailii

Statutes:

Smoke-free (Exemption & Vehicles) Regulations 2007 (SI 2007/765), Human Rights Act 1998, European Convention on Human Rights, Health Act 2007

Jurisdiction:

England and Wales

Citing:

Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Lopez Ostra v Spain ECHR 9-Dec-1994
A waste treatment plant was built close to the applicant’s home in an urban location and the plant released fumes and smells which caused health problems to local residents.
Held: A duty exists to take reasonable and appropriate measures to . .
Cited – Ostrovar v Moldova ECHR 13-Sep-2005
The ‘cumulative effects’ of conditions in a prison cell, which included ‘exposure to cigarette smoke’ were held to go beyond the ‘threshold of severity under article 3 of the Convention’. . .
Cited – Raninen v Finland ECHR 16-Dec-1997
The complainant had been handcuffed unjustifiably and in public but not with the intention of debasing or humiliating him and not so as to affect him sufficiently to attain the minimum level of severity.
Held: The application was rejected The . .
Cited – Moreno Gomez v Spain ECHR 16-Nov-2004
The court discussed the significance of article 8: ‘Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – 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 – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Regina (on the Application of Hunter) v Ashworth Hospital Authority Admn 30-Oct-2001
The court described the regime imposed at Ashworth Hospital as ‘inevitably intense for safety and security reasons. All high risk patients and newly-admitted patients are subject to a high degree of observation at all times. Regular checks are made . .
Cited – Stec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .

Cited by:

Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Cited – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 09 August 2022; Ref: scu.267979

K, Regina (on the Application of) v West London Mental Health NHS Trust: CA 22 Feb 2006

The patient appealed refusal of an order to require the defendant to fund his transfer from Broadmoor Hospital to a medium security private hospital, despite the recommendation of his doctors.
Held: The opinion of the doctors was not binding as to administrative decisions of the Secretary of State or the defendant NHS trust.

Judges:

Lord Justice Waller Lord Justice Dyson Lady Justice Arden

Citations:

[2006] EWCA Civ 118, Times 16-Mar-2006, [2006] 1 WLR 1865

Links:

Bailii

Jurisdiction:

England and Wales

Health, Administrative

Updated: 09 August 2022; Ref: scu.239871

HE v Hospital NHS Trust and Another: FD 7 May 2003

Munby J gave reasons for his decision to permit AE’s treating doctors to infuse her with blood, if necessary, notwithstanding the existence of a living will in which she refused, in advance, to accept the transfusion of blood. He said: ‘There is now quite a substantial body of authority relevant to the issues I have to consider. It is all too well-known to require either description or much analysis: see In re T (Adult: Refusal of Treatment) [1993] Fam 95 , Airedale NHS Trust v Bland [1993] AC 789 , In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 , Re MB (Medical Treatment) [1997] 2 FLR 426 , St George’s Healthcare NHS Trust v S [1999] Fam 26 , Re AK (Medical Treatment: Consent) [2001] 1 FLR 129 and Re B (Consent to Treatment: Capacity) [2002] EWHC 429 (Fam), [2002] 1 FLR 1090.
i) A competent adult patient has an absolute right to refuse consent to any medical treatment or invasive procedure, whether the reasons are rational, irrational, unknown or non-existent, and even if the result of refusal is the certainty of death. I agree with Professor Andrew Grubb’s observation (see [2002] Med L Rev 201 at 203) that: ‘English law could not be clearer. A competent adult patient once properly informed, has the unassailable legal right to refuse any or all medical treatment or care.
ii) Consistently with this, a competent adult patient’s anticipatory refusal of consent (a so-called ‘advance directive’ or ‘living will’ ) remains binding and effective notwithstanding that the patient has subsequently become and remains incompetent.
iii) An adult is presumed to have capacity, so the burden of proof is on those who seek to rebut the presumption and who assert a lack of capacity. It is therefore for those who assert that an adult was not competent at the time he made his advance directive to prove that fact.’

Judges:

Munby J

Citations:

[2003] EWHC 1017 (Fam)

Links:

Bailii

Jurisdiction:

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.

Health

Updated: 09 August 2022; Ref: scu.235735

Regina v Hallstrom and another, ex parte W (No 2): 1986

A judicial review application by a mental patient, requires the permission of a High Court judge: ‘There is . . a canon of construction that Parliament is presumed not to enact legislation which interferes with the liberty of the subject without making it clear that this was its intention.’

Judges:

McCullough J

Citations:

[1986] QB 1090

Jurisdiction:

England and Wales

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 – Naidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago PC 12-Oct-2004
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was . .
Lists of cited by and citing cases may be incomplete.

Health, Judicial Review

Updated: 09 August 2022; Ref: scu.185208

Kings College Hospital NHS Foundation Trust v C and Another: CoP 30 Nov 2015

Application as to an adult’s refusal of medical treatment for anonymisation of the report.

Judges:

MacDonald J

Citations:

[2015] EWCOP 80

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – V v Associated Newspapers Ltd and Others CoP 25-Apr-2016
A patient had earlier been given protection by the anonymisation of her case. She had since died, and the court considered whether the order should be continued to protect members of the family.
Held: The Court of Protection had jursidiction . .
Lists of cited by and citing cases may be incomplete.

Health, Media

Updated: 08 August 2022; Ref: scu.558194

A and Another, Regina (on The Application of) v Secretary of State for Health: Admn 8 May 2014

This claim concerns the lawfulness of the extent of and limitations on the provision of abortion services by the National Heath Service (‘NHS’) in England to a person present in England but ordinarily resident in Northern Ireland. There are two claimants in this case: A, who is a minor, and B who is her mother. For ease of reading, A is referred to throughout as the claimant and B is referred to as her mother or litigation friend.

Judges:

King J

Citations:

[2014] EWHC 1364 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – A (A Child) and Another, Regina (on The Application of) v Secretary of State for Health CA 22-Jul-2015
The court considered an appeal from a refusal of judicial review of a decision not to provide free abortion services in England to women from Northern Ireland.
Held: The appeal failed. . .
At First Instance – 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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Health

Updated: 07 August 2022; Ref: scu.525069

YA, Regina (On the Application of) v Secretary Of State for Health: CA 30 Mar 2009

The applicant was a failed asylum seeker who sought judicial review of a decision of an NHS Trust not to provide him with free care. The court was asked for guidance as to whether a health trust had a discretion to provide free health care to a patient who was not ordinarily resident in the UK.
Held: An NHS trust did have a discretion to grant or withhold treatment for such patients. Services provided under the applicable health scheme should normally be provided free of charge. A failed asylum seeker could not ordinarily claim to be ‘ordinarily resident’. There remained a difference between lawful presence in the UK and lawful residence. Any free treatment was to be provided as an indulgence and not in satisfaction of a right. A hospital’s discretion to assist did not create a duty. The official guidance was however unlawful in that it did not correctly describe the duty to those who required urgent assistance, nor the extent of the discretion it had toward those requiring non-urgent assistance.
‘the statute in need of construction is the 2006 NHS Act. As set out at [8] above, the Secretary of State’s duty prescribed by section 1 is to continue the promotion in England of a comprehensive health service designed to secure improvement in the health ‘of the people of England’. Note that it is the people of England, not the people in England, which suggests that the beneficiaries of this free health service are to be those with some link to England so as to be part and parcel of the fabric of the place. It connotes a legitimate connection with the country. The exclusion from this free service of non-residents and the right conferred by section 175 to charge such persons as are not ordinarily resident reinforces this notion of segregation between them and us. This strongly suggests that, as a rule, the benefits were not intended by Parliament to be bestowed on those who ought not to be here.’

Judges:

Lord Justice Ward, Lord Justice Lloyd and Lord Justice Rimer

Citations:

[2009] EWCA Civ 225, Times 02-Apr-2009, (2009) 12 CCL Rep 213, [2010] 1 All ER 87, [2009] PTSR 1680, [2010] 1 WLR 279, [2009] LS Law Medical 282

Links:

Bailii

Statutes:

National Health Service (Charges to Overseas Visitors) Regulations (SI 1989 No 306)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – Szoma v Secretary of State for the Department of Work and Pensions HL 28-Jul-2005
The applicant had claimed asylum on entry and was temporarily admitted. Though his claim for asylum was later refused, those admitted in this way were granted indefinite leave to remain. He had claimed and received benefits at first, but then these . .

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

Health Professions, Immigration

Updated: 07 August 2022; Ref: scu.326981

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 prosecutions of those who are alleged to have assisted a suicide is lawful. ‘
Held: The first appeal (of Nicklinson) failed (Majority seven to to two) The question of whether the current law on assisted suicide is incompatible with Article 8 lies within the United Kingdom’s margin of appreciation, and is therefore a question for the United Kingdom to decide, and the court did have the constitutional authority to make a declaration of incompatibility of section 2 of the 1961 Act with those article 8 rights. However the issues were inherently ones far better to be decided by Parliament, and Parliament’s assessment should be respected.
In the second appeal, the DPP succeeded in having the decision in favour of AM reversed. Several factors, the judgment by the DPP, the variety of cases, and the need to vary the weight to be attached to them according to the circumstances of each individual case were all proper and constitutionally necessary features of the system of prosecution in the public interest.
Lord Neuberger PSC succinctly described the responsibility of the DPP: ‘The DPP always has the right to decide that it is not in the public interest to prosecute, even where it is clear that an offence was committed; and the DPP has power to stay a private prosecution if satisfied, inter alia, that it is not in the public interest for the prosecution to proceed. All that section 2(4) does, therefore, is to rule out the bringing of a private prosecution for encouraging or assisting a suicide without the DPP’s prior consent (although it is worth noting that, before the creation of the Crown Prosecution Service (‘CPS’), it would have prevented the police prosecuting without the consent of the DPP).’
Lord Neuberger also said: ‘Where the legislature has enacted a statutory provision which is within the margin of appreciation accorded to member states, it would be wrong in principle and contrary to the approach adopted in In re G, for a national court to frank the provision as a matter of course simply because it is rational. However, where the provision enacted by Parliament is both rational and within the margin of appreciation accorded by the Strasbourg court, a court in the United Kingdom would normally be very cautious before deciding that it infringes a Convention right. As Lord Mance said in In re G, the extent to which a United Kingdom court should be prepared to entertain holding that such legislation is incompatible must depend on all the circumstances, including the nature of the subject-matter, and the extent to which the legislature or judiciary could claim particular expertise or competence.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes

Citations:

36 BHRC 465, [2015] 1 AC 657, 139 BMLR 1, [2014] WLR(D) 298, [2014] 3 FCR 1, [2014] HRLR 17, [2014] 3 WLR 200, [2014] 3 All ER 843, (2014) 139 BMLR 1, UKSC 2013/0235, [2014] UKSC 38, [2014] 3 WLR 200

Links:

WLRD, SC, SC Summary, Bailii Summary, Bailii

Statutes:

Homicide Act 1957, Suicide Act 1961 2, Coroners and Justice Act 2009, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

See Also – 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.
At Admin – Nicklinson, Regina (on The Application of) v Ministry of Justice Admn 16-Aug-2012
The claimants each suffered ‘locked in syndrome’ after catastrophic health events, and were unable to commit suicide as they would have wished. In one case, the claimant would have needed assistance to travel to a clinic in Switzerland where he . .
Appeal from – Nicklinson and Another, Regina (on The Application of) v A Primary Care Trust CA 31-Jul-2013
The claimant had suffered a severe form of locked-in syndrome, and would wish to die. He sought a declaration that someone who assisted him in his siuicide would not be prosecuted for murder.
Held: The position in law that voluntary euthanasia . .
Cited – Rex v Croft CCA 1944
A person who was present at the suicide of another and who assisted or encouraged the suicide, is guilty of murder as a principal in the second degree. The survivor of a suicide pact was properly convicted of murder. The court considered liability . .
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 – Inglis, Regina v CACD 12-Nov-2010
The appellant was mother of the victim. He had suffered catastrophic injuries. She had tried to end his life in a ‘mercy killing’, but was discovered, charged with attempted murder, and released on bail. On a second occasion she injected him with a . .
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 – 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 – 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 – 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 – In re B (Consent to treatment: Capacity) FD 22-Mar-2002
The claimant had suffered catastrophic injuries, leaving her unable to breathe without artificial help. She eventually decided that she wanted to refuse treatment. The health authority took this as an indication of lack of capacity, and refused to . .
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 – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – In re B (Consent to treatment: Capacity) FD 22-Mar-2002
The claimant had suffered catastrophic injuries, leaving her unable to breathe without artificial help. She eventually decided that she wanted to refuse treatment. The health authority took this as an indication of lack of capacity, and refused to . .
Cited – Koch v Germany ECHR 19-Jul-2012
Article 8-1
Respect for private life
Refusal by the German courts to examine the merits of an application by a man whose wife had just committed suicide in Switzerland after having attempted unsuccessfully to obtain authorisation to . .
Cited – Gross v Switzerland ECHR 14-May-2013
gross_switzerlandECHR2013
ECHR Article 8
Positive obligations
Article 8-1
Respect for private life
Lack of clear legal guidelines regulating the prescription of a drug to enable individual not suffering from a . .
Cited – Hasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Cited – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
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 – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
Cited – Rodriguez v Attorney General of Canada 30-Sep-1993
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Life, liberty and security of the person – Fundamental justice – Terminally ill patient seeking assistance to commit suicide – Whether . .
Cited – Buckley v The United Kingdom ECHR 25-Sep-1996
The Commission had concluded, by a narrow majority, that the measures taken by the respondent in refusing planning permission and enforcing planning orders were excessive and disproportionate, even allowing a margin of appreciation enjoyed by the . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Regina v Kennedy HL 17-Oct-2007
The defendant had been convicted of manslaughter. He had supplied a class A drug to a friend who then died taking it. The House was asked ‘When is it appropriate to find someone guilty of manslaughter where that person has been involved in the . .
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 – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Greens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
Cited – Sinclair Collis Ltd, Regina (on The Application of) v The Secretary of State for Health CA 17-Jun-2011
The claimants sought to challenge the validity of rules brought in under the 2009 Act as to the placement of cigarette vending machines in retail outlets. They said it was a a national measure restricting the free movement of goods. The . .
Cited – A, B And C v Ireland ECHR 16-Dec-2010
Grand Chamber – The Court considered the prohibition of abortion in Ireland: ‘The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
Cited – Haas v Switzerland ECHR 20-Jan-2011
The applicant was severely bipolar, and wanted to obtain a lethal dose of a drug to kill himself, but could not do so, because Swiss law required him to get a prescription, and, before he could do that, he needed a psychiatric assessment. Relying on . .
Cited – Lautsi v Italy ECHR 18-Mar-2011
(Grand Chamber) The applicants complained that the presence in all state schoolrooms of a crucifix on the wall infringed the principle of secularism. The routine presence in state school classrooms of a crucifix, which was not used for worship, . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Abdullah Yasa And Others v Turkey ECHR 16-Jul-2013
Article 3
Degrading treatment
Inhuman treatment
Serious injury to nose caused by tear gas canister fired by police officer: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Weber and Saravia v Germany ECHR 29-Jun-2006
(Admissibility) ‘The first applicant is a freelance journalist who works for various German and foreign newspapers, radio and television stations on a regular basis. In particular, she investigates matters that are subject to the surveillance of the . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Gillan and Quinton v The United Kingdom ECHR 12-Jan-2010
The claimants had been stopped by the police using powers in the 2000 Act. They were going to a demonstration outside an arms convention. There was no reason given for any suspicion that the searches were needed.
Held: The powers given to the . .

Cited by:

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 . .
At SC – Nicklinson and Lamb v United Kingdom ECHR 16-Jul-2015
The applicants, suffering life threatening and severely disabling conditions, complained of laws which would allow the criminal prosecutions of those assisting them to end their lives. . .
At HL – Nicklinson and Lamb v The United Kingdom ECHR 23-Jun-2015
ECHR Article 8-1
Respect for private life
Ban on assisted suicide and voluntary euthanasia: inadmissible
Facts – The first applicant is the wife of Tony Nicklinson, now deceased, who suffered . .
Cited – Kenward and Another, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 4-Dec-2015
The claimants challenged the policy issued by the DPP on assisted suicide following the Nicklinson case.
Held: The request for judicial review was refused.
Sir Brian Leveson P said: ‘It is important not to misunderstand the effect either . .
Cited – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
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 – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Health, Crime, Human Rights

Leading Case

Updated: 07 August 2022; Ref: scu.527183

Regina v Cambridge and Huntingdon Health Committee Ex Parte B: CA 10 Mar 1995

A decision by a Health Authority to withhold treatment for a patient could be properly so made. It was not ordinarily to be a matter for lawyers. A Health Authority’s withholding of treatment, which might not be in a child’s simple best interests could even so be lawful, but when called upon, it would have to show substantial cause for its decisions.
Where the use of limited resources has to be decided, the undesirability of the court stepping in too quickly was made clear: (Sir Thomas Bingham MR) ‘I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court.’
Sir Thomas Bingham MR: ‘. . . the courts are not, contrary to what is sometimes believed, arbiters as to the merits of cases of this kind. Were we to express opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, then we should be straying far from the sphere which under our constitution is accorded to us. We have one function only, which is to rule upon the lawfulness of decisions. That is a function to which we should strictly confine ourselves.’

Judges:

Sir Thomas Bingham MR

Citations:

Independent 14-Mar-1995, Times 15-Mar-1995, [1995] 1 WLR 898, [1995] EWCA Civ 43, [1995] EWCA Civ 49, [1995] Fam Law 480, [1995] 6 Med LR 250, [1995] 1 FLR 1056, [1995] 2 FCR 485, [1995] 2 All ER 129, [1995] COD 407

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Watts, Regina (on the Application of) v Bedford Primary Care Trust and others Admn 1-Oct-2003
The claimant sought hip-replacement treatment. She was first told that she would have to wait a year. As her lawyers pressed the respondent, she looked at obtaining treatment in France. As she decided to take the treatment, the respondent reduced . .
Cited – Rogers, Regina (on the Application of) v Secretary of State for Health Admn 15-Feb-2006
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was . .
Cited – Rogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
See Also – Regina v Cambridge and Huntingdonshire Health Authority Ex Parte B (No 2) CA 27-Oct-1995
A child’s anonymity could removed, where publicity could generate cash for required treatment. . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Health, Children

Updated: 07 August 2022; Ref: scu.86273

Rabone and Another v Pennine Care NHS Foundation: SC 8 Feb 2012

The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed her a positive obligation to protect life under Article 2.
Held: The claimants’ appeal succeeded. The decision to allow Melanie two days home leave was one that no reasonable psychiatric practitioner would have made, and recourse to the margin of appreciation was misplaced. The Trust had failed to do all that could reasonably have been expected to prevent the real and immediate risk of suicide. It had an operational duty under Article 2 to protect persons from a real and immediate risk of suicide where they were under the control of the state. She had been admitted because she was a real suicide risk. The Trust accepted responsibility for her in taking her under control. Although not detained, had she insisted on leaving the hospital the respondent would have exercised it powers under the 1983 Act to stop her. The difference in these circumstances between detained and voluntary patient was one of form, and not of substance.
The acceptance of a settlement under the 1934 Act was in no way a settlement of any Human Rights claim.
Lord Dyson considered the assessment of damages for infringement of human rights, saying that in the absence of a guideline case in which the range of compensation is specified and the relevant considerations are articulated, it is necessary for our courts to do their best in the light of such guidance as can be gleaned from the Strasbourg decisions on the facts of individual cases.
Lord Brown of Eaton-under-Heywood said that our domestic courts may choose to go further in the interpretation and application of the ECHR than Strasbourg has done where they reach a conclusion which flows naturally from Strasbourg’s existing case law.

Judges:

Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Dyson

Citations:

[2012] 2 WLR 381, [2012] Med LR 221, [2012] 2 All ER 381, [2012] MHLR 66, [2012] HRLR 10, [2012] PTSR 497, [2012] 2 AC 72, (2012) 124 BMLR 148, (2012) 15 CCL Rep 13, [2012] UKSC 2, [2012] WLR (D) 23

Links:

Bailii, Bailii Summary, SC, SC Summary, WLRD

Statutes:

Mental Health Act 1983, European Convention on Human Rights 2, Law Reform (Miscellaneous Provisions) Act 1934

Jurisdiction:

England and Wales

Citing:

At First Instance – Rabone and Another v Pennine Care NHS Trust QBD 23-Jul-2009
The claimant’s daughter had been a voluntary patient at a mental hospital. She committed suicide when on home leave from a secure ward. The claimant now said that the hospital had acted incompatibly with their daughter’s human rights, in releasing . .
Appeal from – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Keenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
Cited – Slimani v France ECHR 27-Jul-2004
A Tunisian was committed to a psychiatric hospital on several occasions. He died while detained in a detention centre awaiting deportation. The applicant complained that there had been a violation of article 2 on two grounds: the detention centre . .
Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – Oneryildiz v Turkey ECHR 30-Nov-2004
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house killing his close relatives.
Held: The . .
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
Cited – Stoyanovi v Bulgaria ECHR 9-Nov-2010
The court rejected an application made by the family of a soldier who died during a parachute exercise, drawing a distinction between risks which a soldier must expect as an incident of his ordinary military duties and ”dangerous’ situations of . .
Cited – Watts v The United Kingdom ECHR 4-May-2010
(Admissibility) The claimant said that her transfer from her existing care home to another care home would reduce her life expectancy.
Held: A badly managed transfer of elderly residents of a care home might have a negative impact on their . .
Cited – Calvelli and Ciglio v Italy ECHR 17-Jan-2002
The applicants’ baby had died shortly after birth in 1987. They complained about the medical care. The complaint was not investigated speedily by the authority, resulting in a criminal complaint becoming time barred after a conviction in 1994 was . .
Cited – Vo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
Cited – Mikayil Mammadov v Azerbaijan ECHR 17-Dec-2009
The applicant’s wife had set fire to herself during an attempt by police officers to evict the applicant and his family from accommodation that they were occupying.
Held: It was necessary to determine whether ‘this specific situation’ . .
Cited – Mitchell and Another v Glasgow City Council HL 18-Feb-2009
(Scotland) The pursuers were the widow and daughter of a tenant of the respondent who had been violently killed by his neighbour. They said that the respondent, knowing of the neighbour’s violent behaviours had a duty of care to the deceased and . .
Cited – Kilinc And Others v Turkey ECHR 7-Jun-2005
kilinc_turkeyECHR05
A state authority may have a positive obligation to prevent foreseeable suicides amongst conscripts to its armed forces. . .
Cited – In re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – Kats and Others v Ukraine ECHR 18-Dec-2008
The applicants were the parents and son of a prisoner who died in custody of an HIV related illness. They complained of her treatment in custody.
Held: If someone dies in custody an explanation of the cause of death must be provided, including . .
Cited – Opuz v Turkey ECHR 9-Jun-2009
The applicant alleged, in particular, that the State authorities had failed to protect her and her mother from domestic violence, which had resulted in the death of her mother and her own ill-treatment. . .
Cited – Renolde v France ECHR 16-Oct-2008
A prisoner with mental health problems committed suicide during pre-trial detention. It was said that the state had infringed his article 2 right.
Held: The court noted the vulnerability of persons in custody, especially those who were . .
Cited – Kats and Others v Ukraine ECHR 14-Mar-2006
. .

Cited by:

Cited – Kent County Council, Regina (on The Application of) v HM Coroner for The County of Kent (North-West District) and Others Admn 15-Oct-2012
The council sought review of the coroner’s decision that the inquest would be an article 2 inquest and with a jury. The deceased was 14 years old and had taken methadone. In the months before his death, he had had involvement with the council’s . .
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Cited – Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Negligence, Damages, Constitutional

Leading Case

Updated: 07 August 2022; Ref: scu.450972

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 parents, devout Roman Catholics, resisted.
Held: The parents’ views were subject to the overriding duty of the court to act to protect the child. In a terrible situation, the choice must be the lesser of two evils. The development of the defence of necessity meant that it would not be a criminal offence of murder to carry out the operation, although the law required parliamentary clarification. The three necessary requirements for the application of the doctrine of necessity are (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided. Those conditions were met in this case, and the appeal was refused.
The court set out the doctrine of necessity: ‘An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided —- The extent of this principle is unascertained. It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat his body.

Judges:

Lord Justice Ward, Lord Justice Brooke And Lord Justice Robert Walker

Citations:

Times 10-Oct-2000, [2000] EWCA Civ 254, [2001] 1 FLR 267, [2000] 4 All ER 961, [2001] Fam 147, [2001] 2 WLR 480, [2001] 9 BHRC 261, [2000] 3 FCR 577, [2001] Fam Law 18, (2001) 57 BMLR 1, [2000] Lloyd’s Rep Med 425, [2001] UKHRR 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – In Re A (Minors) (Conjoined Twins: Medical Treatment) (No 2) CA 15-Nov-2000
The failure by the Official Solicitor to pursue an appeal where leave had been granted, in a case of an application to the court for leave to separate conjoined twins, which separation would lead to the death of one of them, would not of itself . .
Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Cited – S v McC; W v W HL 1972
The distinction between the court’s ‘custodial’ and ‘protective’ jurisdictions was recognised. The case concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. This was not a matter . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – 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 – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – In re T (Adult: Refusal of Treatment) CA 1992
A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or . .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – In Re R (A Minor) (Wardship: Consent to Treatment) CA 1992
A doctor may not operate without on a child the consent of the person apparently legally able to give consent: ‘It is trite that in general a doctor is not entitled to treat a patient without the consent of someone who is authorised to give that . .
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 – Rex v Poulton 18-May-1932
In summing up in a murder trial: ‘With respect to the birth, being born must mean that the whole body is brought into the world . . Whether the child was born alive or not depends mainly on the evidence of the medical men.’ . .
Cited – Rance v Mid-Downs Health Authority 1991
A child is born alive: ‘if, after birth, it exists as a live child, that is to say, breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with . .
Cited – Regina v Handley 1874
The jury were advised of the need to consider whether a child had been born alive: ‘. . i.e. whether it existed as a live child, breathing and living by reason of breathing through its own lungs alone, without deriving any of its living or power of . .
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 – 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 – In re C (A Minor) (Wardship: Medical Treatment) CA 1989
. .
Cited – Re C (Wardship: Medical Treatment) (No 2) CA 1989
The court had already made an order about the way in which the health professionals were able to look after a severely disabled baby girl; an injunction was granted prohibiting identification of the child, her parents, her current carers and the . .
Cited – Birmingham City Council v H (A Minor) and Others HL 16-Dec-1993
The local authority applied for a care order in respect of a young baby. The mother was only 15 and was a ‘child’ herself.
Held: In an application under 34(4) the interests of the child who is the subject of the application are paramount, and . .
Cited – Birmingham City Council v H (A Minor) CA 1993
An application was made by the local authority to take into care the daughter of a 15 year old mother. The question was whether any priority was to be given to the daughter’s interests when the mother herself was also a child.
Held: When the . .
Cited – Regina v Gyngall 1893
The father of the child (a girl of about 15) was dead and it was the mother who was the guardian, it seems by operation of the Guardianship of Infants Act 1886. The decision of the first instance court not to return the girl to her mother, despite . .
Cited – In Re KD (A Minor) (Ward: Termination of Access) HL 1988
The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: . .
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 T (A Minor) (Wardship: Medical Treatment) CA 24-Oct-1996
A baby boy who was 18 months old, suffered from a life-threatening liver defect. His parents were health-care professionals experienced in the care of sick children. The unanimous medical view was that as soon as donor liver became available the . .
Cited – Regina v Sheppard HL 1981
The section made it an offence for anyone having care of a child to wilfully neglect the child ‘in a manner likely to cause him unnecessary suffering or injury to health’.
Held: The section speaks of an act or omission that is ‘likely’ to . .
Cited – Regina v Woollin HL 2-Apr-1998
The defendant appealed against his conviction for the murder of his child. He had thrown the child to the floor, hitting the head. He said that he had not intended to kill the child.
Held: On a murder charge, where the short direction on . .
Mentioned – Rex v Gibbins and Proctor CCA 1918
Wretched parents were accused of murder after their children starved to death. The court was asked whether they should be tried together: ‘The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly . .
Mentioned – Regina v Gyngall 1893
The father of the child (a girl of about 15) was dead and it was the mother who was the guardian, it seems by operation of the Guardianship of Infants Act 1886. The decision of the first instance court not to return the girl to her mother, despite . .
Cited – Perka v The Queen 1984
(Canada) The court analysed the defence of necessity. The concept of necessity is used as an excuse for conduct which would otherwise be criminal. The defence arose where, realistically, the individual had no choice, where the action was . .
Cited – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – Paton v United Kingdom ECHR 1980
An abortion conducted in the tenth week of pregnancy was not condemned. The Commission construed Article 2 to be subject to an implied limitation to allow a balancing act between the interests of mother and unborn child. . .
Cited – McCann and Others v The United Kingdom ECHR 6-Oct-1995
Wrong assumptions made by police officers in the killing of terrorists amounted to a human rights breach, despite the existence of danger to the public of an imminent attack. Article 2(1) is ‘one of the most fundamental provisions in the . .
Cited – Attorney-General’s Reference (No 3 of 1994) CACD 29-Nov-1995
The defendant was convicted of murder. He stabbed a pregnant woman, causing the premature birth and then death of her child.
Held: Murder is a possible charge for a wound inflicted on an infant en ventre sa mere, but dying after a live birth. . .
Cited – Regina v Dudley and Stephens QBD 9-Dec-1884
Three survivors of the yacht Mignonette were landed from a German sailing barge at Falmouth in September 1884. On the day they landed all three of them described the circumstances in which the fourth member of the crew, the ship’s boy had been . .
Cited – Regina v Gotts HL 3-Jun-1992
The defendant had been convicted of attempted murder, and appealed the rejection of his defence of duress.
Held: The defence of duress is not available to an accused facing a charge of attempted murder as a matter of policy, since it would not . .
Cited – Rex v Bourne 1939
An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain . .
Cited – Regina v Kitson 1955
K had a lot to drink and went to sleep in the passenger seat of a car driven by his brother-in-law. When later charged with driving car under the influence of drink, he said in his defence that when he woke up, he found that the driving seat was . .
Cited – Regina v Willer (Mark Edward) CACD 1986
The defendant appealed against his conviction for reckless driving (absolute discharge and ten penalty points). He drove his car slowly on the pavement in front of a shopping precinct. He said that this had seemed to him to be the only way in which . .
Cited – Regina v Conway 1989
The defendant said that he had driven recklessly because he was in fear for his life and that of his passenger.
Held: The court was bound by Willer to rule that a defence of duress was available. It was convenient to refer to this type of . .
Cited – Southwark London Borough Council v Williams CA 1971
No Defence of Homelessness to Squatters
The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity.
Held: The proper use of abandoned council properties is best . .
Cited – Director of Public Prosecutions for Northern Ireland v Lynch HL 1975
The House considered the availability of duress as a defence on a charge of aiding and abetting murder. Referring to the basic elements of criminal liability, mens rea and actus reus: ‘Both terms have, however, justified themselves by their . .
Cited – Regina v Instan 1893
It was legitimate to break the law where it was necessary to rescue someone to whom one owed a positive duty of rescue, because a failure to act in such a situation might itself constitute a culpable act or omission. . .
Cited – Regina v Abdul-Hussain; Regina v Aboud; Regina v Hasan CACD 17-Dec-1998
The law of the defence of duress arising out of threat or circumstances is in need of urgent parliamentary clarification. Appeals were allowed where the defendants hijacked an airplane in order to escape deportation to a hostile country. ‘The . .
Cited – Regina v Pommell CACD 16-May-1995
The defendant appealed against his conviction for possessing a loaded shotgun. He had wished to advance a defence to the effect that on the previous evening he had taken it ‘off a geezer who was going to do some damage with it’ in order to stop him. . .
Cited – Regina v Hudson and Taylor CACD 17-Mar-1971
Two teenage girls committed perjury by failing to identify the defendant. When prosecuted they pleaded duress, on the basis that they had been warned by a group, including a man with a reputation for violence, that if they identified the defendant . .
Cited – Abbott v The Queen PC 20-Jul-1976
The appellant was charged as a principal in the first degree, and the issue was whether the defence of duress was available. The Board considered the availability of duress as a defence to a criminal charge.
Held: The defence was not open to . .
Cited – Regina v Martin (Colin) CACD 29-Nov-1988
Defence of Necessity has a Place in Criminal Law
The defendant appealed against his conviction for driving whilst disqualified. He said he had felt obliged to drive his stepson to work because his stepson had overslept. His wife (who had suicidal tendencies) had been threatening suicide unless he . .
Cited – Paton v United Kingdom ECHR 1980
An abortion conducted in the tenth week of pregnancy was not condemned. The Commission construed Article 2 to be subject to an implied limitation to allow a balancing act between the interests of mother and unborn child. . .
Cited – Peters v Netherlands ECHR 1994
The court considered the right not to be subjected to compulsory medical interference. . .
Cited – Re T and E (proceedings: conflicting interests) 1995
Where a court had to recincile conflicting interests involving children, the court must normally undertake a balancing exercise to achieve the situation of least detriment. . .
Cited – Regina v Cox 18-Sep-1992
Whether the questioning of a suspect in a police station amounted to an interview was a question of fact dependant upon all the circumstances, including the rest, arrival at the police station, caution, the notification of rights, and the nature of . .

Cited by:

See Also – In Re A (Minors) (Conjoined Twins: Medical Treatment) (No 2) CA 15-Nov-2000
The failure by the Official Solicitor to pursue an appeal where leave had been granted, in a case of an application to the court for leave to separate conjoined twins, which separation would lead to the death of one of them, would not of itself . .
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 – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD 27-May-2005
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
Cited – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
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 – 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 – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Health, Human Rights

Updated: 07 August 2022; Ref: scu.81629

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 of Appeal permitting the action.
Held: The appeal failed. The practitioners sought to act in accordance with medical practice, but until the practice was universally accepted, applications should continue to be made to the Family Division. The issues should be considered urgently by Parliament. Any justification for invasive treatment no longer existed, and the doctors were correct to seek to discontinue treatment. The patient could himself no longer choose. It would not be unlawful to cease to provide the treatment which it had previously been a duty to perform.
Lord Goff said: ‘I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient’s life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient’s wishes by withholding treatment or care, or even in certain circumstances in which (on principles which I shall describe) the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see Reg v Cox (unreported), 18 September 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful; but that result could, I believe only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law, and can, if enacted, ensure that such legalised killing can only be carried out subject to appropriate supervision and control. It is true that the drawing of this distinction may lead to a charge of hypocrisy; because it can be asked why, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by lethal injection, rather than let him linger on in pain until he dies. But the law does not feel able to authorise euthanasia, even in circumstances such as these; for once euthanasia is recognised as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others. ‘
Lord Goff also said: ‘the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so.’
Lord Browne-Wilkinson said: ‘. . the correct answer to the present case depends upon the extent of the right to continue lawfully to invade the bodily integrity of Anthony Bland without his consent. If in the circumstances they have no right to continue artificial feeding, they cannot be in breach of any duty by ceasing to provide such feeding.’

Judges:

Lord Keith of Kinkel, Lord Goff of Chieveley, Lord Lowry, Lord Browne-Wilkinson and Lord Mustill

Citations:

[1993] AC 789, [1993] 2 WLR 316, [1993] UKHL 17, [1992] UKHL 5

Links:

lip, Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – 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 – Finlayson v HM Advocate 1978
. .
Cited – Imperial Tobacco Ltd v Attorney-General HL 1980
The applicant sought a declaration as to the lawfulness of a lottery scheme whilst criminal proceedings were pending against it for the same scheme.
Held: It was not necessary to decide whether a declaration as to the criminality or otherwise . .
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 Adams 8-Apr-1957
. .
Cited – Regina v Blaue CACD 1975
The accused stabbed a Jehovah’s witness who subsequently refused a blood transfusion and died.
Held: The rule that the accused took his victim as he found her applied not only to physical characteristics, but also to her beliefs. . .
Cited – Regina v Brown etc CACD 15-Apr-1992
The defendants appealed against their convictions for offences under the 1861 Act of assaults inflicting injury. They said that as sado-masochists, they had mutually consented to the assaults and that no offences had been commited, but pleaded gulty . .
Cited – Regina v Cox 18-Sep-1992
Whether the questioning of a suspect in a police station amounted to an interview was a question of fact dependant upon all the circumstances, including the rest, arrival at the police station, caution, the notification of rights, and the nature of . .
Cited – Regina v Malcherek and Steel CACD 1981
The defendants appealed against their convictions for murder. They had severely assaulted the victim who later in hospital had ventilator support withdrawn. They asserted that the proximate cause of the death was that act, not theirs.
Held: . .
Cited – Regina v Stone and Dobinson CACD 1977
The male defendant, Stone, and his mentally disabled son lived in Stone’s house with the female defendant, Dobinson. Stone’s sister came to live as a lodger. She neglected herself to such an extent that she became helplessly infirm. Fanny refused to . .
Cited – Rex v Gibbins and Proctor CCA 1918
Wretched parents were accused of murder after their children starved to death. The court was asked whether they should be tried together: ‘The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly . .
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – In re T (Adult: Refusal of Treatment) CA 1992
A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or . .
At CA – 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 – Regina v Arthur 5-Nov-1981
. .
At FD – 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 by:

Cited – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
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 – 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 – 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 . .
Cited – In Re Z (Local Authority: Duty) FD 3-Dec-2004
Mrs Z suffered a terminal disease, and sought to travel to Switzerland supported and assisted by her husband, so that she could terminate her life. She appealed an injunction obtained by the authority to prevent her leaving.
Held: The . .
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 – 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 – 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 . .
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 . .
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 – 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 – Oliver v Symons CA 15-Mar-2012
The parties disputed the extent of a right of way, the claimant appealing against the rejection of his claim for ‘swing space’ alongside the right of way.
Held: The appeal failed. Elias LJ said that the ‘argument for swing space fails. That is . .
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 – 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 – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – 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 – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Health, Health Professions, Administrative, Crime, Constitutional

Updated: 07 August 2022; Ref: scu.174705

Regina v North and East Devon Health Authority ex parte Coughlan: Admn 11 Dec 1998

There had been no transfer to Social Service Authorities of the Health Services’ statutory duty to provide specialist nursing and related care to the elderly, and having made a promise to provide a home for life, the Health Authority would be held to it.

Citations:

Times 29-Dec-1998, [1998] EWHC Admin 1134

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Regina v North and East Devon Health Authority; North Devon Healthcare NHS Trust ex parte Pow, Geall and Ridd Admn 4-Aug-1997
The health authority had taken their decision on the future of a hospital without consultation and sought to rely on regulation 18(3), arguing that the ‘decision ha[d] to be taken without allowing time for consultation.’
Held: That argument . .

Cited by:

Cited – Cowl and others v Plymouth City Council Admn 14-Sep-2001
The applicants were residents of a nursing home run by the respondents, and sought judicial review of the decision to close it. Before making the decision, the council consulted the residents and concluded that none had been offered a ‘home for . .
Appeal from – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Rashid, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Jun-2005
The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it . .
Lists of cited by and citing cases may be incomplete.

Health, Local Government

Updated: 06 August 2022; Ref: scu.139256

Regina v North and East Devon Health Authority; North Devon Healthcare NHS Trust ex parte Pow, Geall and Ridd: Admn 4 Aug 1997

The health authority had taken their decision on the future of a hospital without consultation and sought to rely on regulation 18(3), arguing that the ‘decision ha[d] to be taken without allowing time for consultation.’
Held: That argument was reject: ‘As Professor Joad might have said, it all depends what one means by proposal. The answer, in my judgment, is to be found in the Regulation itself. The proposal of a substantial variation, which the Regulation contemplates, is a proposal of such particularity that it can be identified as a substantial variation. It must also be crystallised to the extent that it is capable of consideration by the Health Authority. But since it is the trigger for consultation, it need not, indeed must not, be the subject of any final resolution. If it was, it would undermine the purpose of Regulation 18(1) which is to provide for consultation.’ and ‘In my judgment, a proposal to close Lynton and Winsford’s health services temporarily was of sufficient cogency by 9th April 1997 as to trigger the duty to consult with the Community Health Council. It is true that at that stage the proposal included other possibilities for savings, such as the closure at Torrington, but in my view that does not mean it was not capable of forming the subject of the consultation with the Community Health Council. After all, they might well have wished to debate the merits of those other possibilities as alternatives to the closure of Lynton and Winsford’ and ‘It is true that the proposal had not been considered by the Board, but that does not mean that it was not under consideration by the Health Authority. The trigger to Regulation 18(1) is not confined to decisions as to solutions by the Board of the Health Authority.’

Judges:

Moses J

Citations:

[1997] EWHC Admin 765, [1998] 1 CCLR 280

Links:

Bailii

Statutes:

The Community Health Councils Regulations 1996 18(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Worcestershire Health Council (Arising From the Complaint of Kidderminster and District Community Health Council) CA 28-May-1999
The respondent had planned to downgrade a local hospital, closing the accident and emergency department. This was a renewed application for leave to seek judicial review of the plan. The health authority initially developed and had before them seven . .
See Also – Regina v North and East Devon Health Authority ex parte Coughlan Admn 11-Dec-1998
There had been no transfer to Social Service Authorities of the Health Services’ statutory duty to provide specialist nursing and related care to the elderly, and having made a promise to provide a home for life, the Health Authority would be held . .
Lists of cited by and citing cases may be incomplete.

Health, Administrative

Updated: 06 August 2022; Ref: scu.137710

Johnston v Chief Constable of Merseyside Police: QBD 20 Nov 2009

The proposed claimant sought leave under the 1983 Act to bring an action for assault and false imprisonment, and further a disapplication of the limitation period to allow a claim out of time. The defendant said that the proposed claimant had been found in a public place and had been to appear to be suffering a mental disorder.

Judges:

Coulson J

Citations:

[2009] EWHC 2969 (QB)

Links:

Bailii

Statutes:

Mental Health Act 1983 136 139

Citing:

Cited – Winch v Jones CA 1986
The court asked as to the criteria which should be applied when considering an application by a mental patient for leave to bring proceedings under section 139: ‘section 139 protects the defendant unless and until the applicant obtains leave. This . .
Lists of cited by and citing cases may be incomplete.

Health, Police, Limitation

Updated: 05 August 2022; Ref: scu.380361

Rabone and Another v Pennine Care NHS Trust: QBD 23 Jul 2009

The claimant’s daughter had been a voluntary patient at a mental hospital. She committed suicide when on home leave from a secure ward. The claimant now said that the hospital had acted incompatibly with their daughter’s human rights, in releasing her when she needed care.
Held: The claim failed. Since Melanie was a voluntary mental patient, not detained under the Mental Health Act, the NHS Trust did not have an operational obligation to her under ECHR article 2. Even if the NHS Trust did have such an operational obligation under ECHR article 2, it was not in breach of that obligation. The allegation of systemic breach of ECHR article 2, namely failure to adopt systems of work to protect the lives of patients, was rejected. The NHS Trust was not in breach of the investigatory obligation under ECHR article 2. The claimants were not victims for the purposes of section 7(7) of the Human Rights Act.
It was not equitable to extend the one-year time limit for bringing the human rights claims under section 7(5) of the Human Rights Act. If the claimants had succeeded in their claims, the proper award would have been andpound;1,500 for each claimant.

Judges:

Simon J

Citations:

[2009] EWHC 1827 (QB), [2009] LS Law Medical 503, (2009) 110 BMLR 56, [2010] PIQR P2

Links:

Bailii

Statutes:

Human Rights Act 1998 7, European Convention on Human Rights 2, Law Reform (Miscellaneous Provisions) Act 1934

Jurisdiction:

England and Wales

Cited by:

Appeal from – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
At First Instance – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Negligence

Updated: 04 August 2022; Ref: scu.375080

McCann v The State Hospitals Board for Scotland: SC 11 Apr 2017

A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking indoors, but rather as to the ban on smoking in the grounds and on home visits, which, by creating a comprehensive ban, prevented detained patients from smoking anywhere.
Held: The appeal was allowed in part. The respondent had not considered the principle that their actions should represent the minimum interference with a restrained person’s freedoms necessary to achieve the intended purpose. The absolute prohibition on having tobacco products and the related powers to search and confiscate were illegal and were nullified.
‘The Board did not purport to act under the 2003 Act in instituting the policy of prohibiting the possession of tobacco products, searching for such products and confiscating them. It may be the case that the consultation exercises which the Board carried out during 2011 were sufficient to comply with the obligations in section 1(2) and (3) of the 2003 Act. But there appears to have been no consideration of the obligation under section 1(4) nor compliance with the obligations to inform and record in the 2005 Regulations. This is not surprising as the Board considered that it was acting under the 1978 Act.’

Judges:

Lady Hale, Deputy President, Lord Mance, Lord Wilson, Lord Reed, Lord Hodge

Citations:

[2017] UKSC 31, [2017] 1 WLR 1455, 2017 GWD 12-169, 2017 SLT 451, [2017] 4 All ER 449, (2017) 156 BMLR 35, [2017] WLR(D) 268, UKSC 2015/0135

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Mental Health (Care and Treatment) (Scotland) Act 2003, European Convention on Human Rights 8

Jurisdiction:

Scotland

Citing:

Outer House – CM, Re Judicial Review SCS 27-Aug-2013
(Outer House) The prisoner, held in a high security psychiatric hospital, challenged the outright ban on smoking.
Held: The Lord Ordinary declared that the impugned decision was unlawful so far as it affected Mr McCann both because it was not . .
Extra Div Inner House – SN v Secretary of State for The Home Department SCS 14-Jan-2014
Extra Division, Inner House – . .
Appeal From – Reclaiming Motion Charles McCann v The State Hospital Board for Scotland SCS 12-Aug-2014
Inner House – The house considered a reclaiming motion (appeal) as to the lawfulness of a decision by the respondents to prohibit smoking and the possession of tobacco in the buildings and grounds of the State Hospital, Carstairs. The Board . .
Cited – Lyons, Re Judicial Review SCS 2-Feb-2011
The petitioner was a detained patient, subject to both a compulsion and restriction orders. He objected to a policy restricting visitors from bringing food parcels, and restricting ordering food from outside.
Held: Lady Dorrian held that the . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – Munjaz v The United Kingdom ECHR 17-Jul-2012
The applicant was detained in a secure mental hospital. He complained that he had been held in seclusion.
Held: The complaints under articles 5 and 8 were admissible, but there had been no violation of the applicant’s rights in these . .
Cited – Bruggeman and Scheuten v Federal Republic of Germany ECHR 12-Jul-1977
(Commission) The applicants complained at restrictions on the termination of unwanted pregnancies.
Held: Article 8(1) secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. He . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
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 – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
Cited – Regina v Broadmoor Hospital Authority, Ex p S CA 1998
Routine and random searches may be an incident of therapeutic detention and treatment. . .
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.

Health, Prisons, Human Rights

Updated: 03 August 2022; Ref: scu.581645

B v Responsible Medical Officer, Broadmoor Hospital, Dr SS and others: Admn 8 Sep 2005

Compulsory administration of treatment to detained mental patient. The court considered, but left open, the relationship between the ‘convincingly shown’ standard of proof, and the decision of the House of Lords in In re H as to the civil standard of proof in English law. He proceeded on the basis of the ‘convincingly shown’ standard, treating it as the parties had agreed, as lying between the English civil standard and criminal standard.

Judges:

Charles J

Citations:

[2005] EWHC 1936 (Admin)

Links:

Bailii

Statutes:

Mental Health Act 1983

Jurisdiction:

England and Wales

Citing:

See Also – B, Regina (on the Application of) v Dr SS and others Admn 31-Jan-2005
The claimant was a mental patient detained for a bipolar dis-order after convictions for rape. . .

Cited by:

Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Appeal from – B, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Evidence

Updated: 03 August 2022; Ref: scu.231224

Broadmoor Hospital Authority v Robinson: QBD 12 Oct 1998

A secure hospital’s right to prevent a package or letter being sent out by a patient did not extend to allowing a restriction on publication or recovery of a book manuscript once it had already left the hospital.

Judges:

Poole J

Citations:

Times 15-Oct-1998

Statutes:

Mental Health Act 1983 134

Jurisdiction:

England and Wales

Citing:

Appealed to – Broadmoor Hospital Authority and Another v Robinson CA 20-Dec-1999
Where a body was given statutory duties, it would normally be entitled to orders restraining others from interfering with its performance of those duties. A patient detained under the Act had written a book, and the Hospital had sought to restrain . .

Cited by:

Appeal from – Broadmoor Hospital Authority and Another v Robinson CA 20-Dec-1999
Where a body was given statutory duties, it would normally be entitled to orders restraining others from interfering with its performance of those duties. A patient detained under the Act had written a book, and the Hospital had sought to restrain . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 03 August 2022; Ref: scu.78664

NT v FS and Others: CoP 26 Mar 2013

An application was made for a statutory will for the patient. The court considered how it should approach competing suggestions as to the provisions to be included.
Held: The 2005 Act had changed the basis for such wills fundamentally. The court must decide what is objectively in the patient’s best interests, and not what the patient might have chosen themselves. The Act sets out the steps and considerations to be followed and these must be applied. Having applied that stuctured approach, the court must then check subjectively whether overall the result was in the patient’s best interests. The significance of the several elements will differ from case to case, but the Act gives none precedence. The views and wishes of the patient are included in the list, but have no priority over other considerations, and again the significance will reflect that particular case.
In this case a will signed by the patient, but not witnessed was helpful, but not of ‘magnetic’ importance.
Orders accordingly.

Judges:

Behrens J

Citations:

[2013] EWHC 684 (COP), [2013] EWCOP 684

Links:

Bailii, Bailii

Statutes:

Mental Capacity Act 2005 1(5) 4(2) 4(6) 4(7) 16 18(1)

Jurisdiction:

England and Wales

Citing:

Cited – In re P (Statutory Will) ChD 9-Feb-2009
A request was made for a statutory will.
Held: The 2005 Act marked a radical departure from previous practice. A decision made on behalf of a protected person must be made in his best interests. That was not (necessarily) the same as inquiring . .
Cited – In re M; ITW v Z and Others (Statutory Will) FD 12-Oct-2009
The court considered a request for a statutory will under the 2005 Act.
Held: the Court of Protection has no jurisdiction to rule on the validity of any will. However, Munby J made three points: (1) that the 2005 Act laid down no hierarchy as . .
Cited – Re G(TJ) 2011
Morgan J did not think it a relevant consideration when setting the terms of a statutory will under the 2005 Act, that the patient should be remembered for having done the right thing. Under the new arrangements of the Act, the making of the gift . .
Cited – Re J(C) CoP 2012
Lush J doubted that a proper consideration when setting the terms for a statutory will under the 2005 Act, would be the desirability of the deceased being remembered for having ‘done the right thing’ in his will. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 31 July 2022; Ref: scu.472017

In re T (Adult: Refusal of Treatment): CA 1992

A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.’ However the capacity must be commensurate with the gravity of the decision purported to be made: ‘The more serious the decision, the greater the capacity required.’

Judges:

Lord Donaldson of Lymington MR

Citations:

[1992] 4 All ER 649, [1992] 3 WLR 782, [1993] Fam 95

Jurisdiction:

England and Wales

Citing:

Followed – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .

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 . .
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 – U v Centre for Reproductive Medicine CA 24-Apr-2002
The claimant appealed a refusal to grant an order preventing the destruction of the sperm of her late husband held by the respondent fertility clinic. The clinic had persuaded her husband to sign a form of consent for this purpose. The claimant said . .
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 – 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 – B, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 31 July 2022; Ref: scu.180381

Blouet v Bath and Wansdyke Magistrates Court: Admn 12 Mar 2009

Application for judicial review of the decision of the district judge, sitting at Bath and Wansdyke Magistrates’ Court, not to order a fact-finding exercise rather than a trial.

Citations:

[2009] EWHC 759 (Admin), [2009] MHLR 71

Links:

Bailii

Statutes:

Powers of Criminal Courts (Sentencing) Act 2000 11(1), Mental Health Act 1983 37(3)

Jurisdiction:

England and Wales

Judicial Review, Magistrates, Health

Updated: 30 July 2022; Ref: scu.347435

Regina v Ashworth Hospital Authority, Ex parte Munjaz (No 2): Admn 5 Jul 2002

The court dismissed the claimant’s complaint that the seclusion policies operated at Ashworth Special Hospital infringed his human rights. The Special Hospitals operated policies for seclusion which differed from the Code of Practice laid down under the Act.
Held: The claim was dismissed. Any seclusion had been of such a short duration as not to give rise to an infringement of the patient’s rights. A departure from the Code did not imply a necessary infringement, since the Code was for guidance only.
As to the alleged infringement of his article 3 and article 8 rights, the minimum level of severity required for Article 3 was not met and there was no breach of Article 8. It also found that the Code of Practice was merely guidance. The Court accepted evidence that the applicant had not remained in seclusion for longer than had been necessary, and that there was no evidence that more frequent reviews would have reduced the time spent in seclusion.
The applicant was detained at Ashworth secure mental hospital. He challenged the lawfulness of the policy implemented for secuded detentions.
Held: The Code fell within (1)(b) but not (1)(a).

Judges:

Sullivan J

Citations:

[2002] EWHC (Admin) 1521

Statutes:

Mental Health Act 1983 47 49, European Convention on Human Rights 3 8

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Ashworth Special Hospital Trust, ex parte Munjaz 10-Oct-2000
The claimant was detained iin a secure mental hospital. He complained of being held in seclusion for a long period, and as to the hospital’s policy.
Held: The hospital’s policy, by reducing the frequency of review of a patient’s seclusion . .

Cited by:

Cited – S v Airedale National Health Service Trust QBD 22-Aug-2002
The patient had been detained, and then secluded within the mental hospital for 11 days. He claimed to have been subjected to inhuman treatment, and false imprisonment.
Held: His claim failed. The policy allowed the authority to confine him to . .
At First Instance – 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 . .
Appeal from – Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
2nd case – C Munjaz v United Kingdom ECHR 20-Mar-2008
The applicant complained of his seclusion whilst being detaned at a secure mental hospital.
Held: The court referred several questions back to the parties to be answered. . .
Second Case – Munjaz v The United Kingdom ECHR 17-Jul-2012
The applicant was detained in a secure mental hospital. He complained that he had been held in seclusion.
Held: The complaints under articles 5 and 8 were admissible, but there had been no violation of the applicant’s rights in these . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Health, Prisons, Human Rights

Updated: 28 July 2022; Ref: scu.182189

WC, Regina (On the Application of) v South London and Maudsley NHS Trust and Another: Admn 25 Oct 2001

The claimant challenged his detention under section 3 of the 1983. He suffered from paranoid schizophrenia. He said that the social worker had consulted his wife and not, as he said was correct, his mother.
Held:

Judges:

Scott Baker J

Citations:

[2001] EWHC Admin 1025, [2001] 1 MHLR 187

Links:

Bailii

Statutes:

Mental Health Act 1983 3

Cited by:

Cited – GD v Hospital Managers of the Edgware Community Hospital and Another Admn 27-Jun-2008
The claimant sought a writ of habeas corpus, by way of a challenge to his detention under section 3 of the 1983 Act, saying that it had been unlawful because the social workers had failed to consult his father.
Held: Burnett J said: ‘The duty . .
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 28 July 2022; Ref: scu.347091

GD v Hospital Managers of the Edgware Community Hospital and Another: Admn 27 Jun 2008

The claimant sought a writ of habeas corpus, by way of a challenge to his detention under section 3 of the 1983 Act, saying that it had been unlawful because the social workers had failed to consult his father.
Held: Burnett J said: ‘The duty to consult is one which exists to enable there to be a dialogue about the action proposed in respect of a mentally ill individual. The person consulted is entitled to have his views taken into account and, importantly, the consultation [process] should enable the nearest relative to object to the proposed course if he wishes. The consultation must be a real exercise and not a token one. If an objection is made, it does not have to be a reasonable one. It does not have to be one which judged objectively is sensible. But it has the effect of stopping the proposed course of action, whilst of course not shutting out alternatives available under the Act.’
and as to section 11(4): ‘It is plain that the language of the subsection is directed towards the subjective knowledge of the social worker concerned. Indeed, for Parliament to have imposed an objective test in those circumstances would have been unduly oppressive and probably counterproductive.’
Referring to Re D and WC, he continued: ‘What both these judgments demonstrate is no more than a well-recognised proposition that when a statute imposes a subjective test of the sort one sees in section 11(4) of the Act, this court will not interfere with the decision made save on well-recognised public law grounds.
Furthermore, in that review exercise, given the circumstances engaged in cases of this sort, the court will inevitably be sensitive to the difficulties faced by those who have to make difficult decisions, sometimes in fast-moving and tense circumstances. The question might be, for example, whether it was open to the decision-maker on the information available to him to reach the conclusion he did. In both Re D and the case of WC the court used the words ‘plainly wrong’ as shorthand for that concept.
Ms Street, who appeared, as I say, on behalf of the defendants, submitted that unless the assertion contained in Form 9, from which I have read, was dishonest, this court should not interfere. She focused on the word ‘dishonest’ because it had been found in paragraph 15 of the judgment of Otton LJ in Re D.
In my judgment, that is too austere an approach. The court should look at the question on a wider basis because it is concerned with the legality of the process. In doing so, the court will recognise that the decisions can only be questioned on a public law basis and, as I have already indicated, in an environment where some sensitivity to the difficulties faced by those making the decisions is required.’

Judges:

Burnett J

Citations:

[2008] EWHC 3572 (Admin)

Links:

Bailii

Statutes:

Mental Health Act 1983 3

Citing:

Cited – In Re D (Mental Patient: Habeas Corpus) Admn 2000
. .
Cited – WC, Regina (On the Application of) v South London and Maudsley NHS Trust and Another Admn 25-Oct-2001
The claimant challenged his detention under section 3 of the 1983. He suffered from paranoid schizophrenia. He said that the social worker had consulted his wife and not, as he said was correct, his mother.
Held: . .

Cited by:

Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 28 July 2022; Ref: scu.347094