Category: Health

Robertson v Fife Council: HL 25 Jul 2002

The local authority considered providing residential care to the applicant. She had given away her former home, and they sought to take into account notional capital attributed to her as if the house had not been given away. Having done so, it declined to assist.
Held: The obligation to provide care was a separate duty and was not to be run together with the consequences of the assessment of financial resources when the authority considered whether to offer assistance. The direction in section 12(3A) of the 1968 Act to disregard capital below one level was not a direction to take into account capital above that level. This did not mean that the patient should not be charged for the care provided. The need assessment came first, and the costs implications was a separate and second matter.

Judges:

Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Nicholls of Birkenhead, Lord Hope of Craighead and Lord Hobhouse of Woodborough

Citations:

Times 08-Aug-2002, [2002] UKHL 35, (2002) 68 BMLR 229, (2002) 5 CCL Rep 543, 2003 SCLR 39, 2002 SC (HL) 145, 2002 Hous LR 78, 2002 GWD 26-927, 2002 SLT 951

Links:

House of Lords, Bailii

Statutes:

Social Work (Scotland) Act 1968 12 12(3A) 12A 13A 55, Community Care (Residential Accommodation) Act 1998, National Health Service and Community Care Act 1990

Jurisdiction:

Scotland

Benefits, Local Government, Health

Updated: 06 June 2022; Ref: scu.174395

KB and Others, Regina (on the Applications of) v Mental Health Review Tribunal: Admn 23 Apr 2002

Damages were claimed by three mental health patients whose rights under Article 5(4) had been infringed because of inordinate delay in processing their claims to mental health review tribunals.
Held: Article 5.5 did not make an award of damages mandatory. It was complied with provided that it was possible to make an application for compensation; it did not preclude the Contracting States from making the award of compensation conditional upon proof that procedural delay had resulted in damage. Should compensation be awarded where delay has caused frustration and distress? ‘I conclude that there is no ‘clear and constant jurisprudence’ of the European Court on the recoverability of damages for distress under Article 5.5 in the absence of deprivation of liberty. There are two principles applied by the Court: that damages are not recoverable in the absence of deprivation of liberty, and that damages are recoverable for distress which may be inferred from the facts of the case. It follows that this Court must itself determine the principles it is to apply.’ Having regard for the vulnerability of detained mental health patients: ‘Thus, even in the case of mentally ill claimants, not every feeling of frustration and distress will justify an award of damages. The frustration and distress must be significant: of such intensity that it would in itself justify an award of compensation for non-pecuniary damages. In my judgment, an important touchstone of that intensity in cases such as the present will be that the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes.’

Judges:

Stanley Burnton J

Citations:

[2002] EWHC 639 (Admin), [2003] EWHC 193 (Admn), [2004] 1 QB 936

Links:

Bailii

Statutes:

European Convention on Human Rights 5.4 5.5

Jurisdiction:

England and Wales

Citing:

Appealed to – KB v National Health Service Pensions Agency and Secretary of State for Health ECJ 7-Jan-2004
The claimant had for a number of years had a relationship with a trans-sexual. They had been unable to marry because English law would not recognise a marriage. She compained that on her death her partner would be unable to claim the pension awarded . .

Cited by:

Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – P, Regina (on the Application of) v Secretary of State for the Home Department Admn 11-Dec-2003
The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
Appeal from – KB v National Health Service Pensions Agency and Secretary of State for Health ECJ 7-Jan-2004
The claimant had for a number of years had a relationship with a trans-sexual. They had been unable to marry because English law would not recognise a marriage. She compained that on her death her partner would be unable to claim the pension awarded . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Degainis, Regina (on The Application of) v Secretary of State for Justice Admn 3-Feb-2010
The claimant sought damages. He had been released from prison and recalled, but the review of his continued detention was not undertaken as it should have been. The defendant said that the acknowledgement and apology were sufficient just . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 06 June 2022; Ref: scu.172200

Wooder, Regina (on the Application of) v Feggetter and Dr Grah: CA 25 Apr 2002

The patient challenged the treatment given to him against his will as a detained mental patient. He said the opinion of the second doctor as required under the Act, had not been put into writing.
Held: Following Wilkinson, which allowed a challenge to such decisions, it was inevitable that a written opinion would be required from the second doctor. Otherwise the challenge would not be possible. The duty did not go so far as to require disclosure of the request to the second doctor for that opinion.

Judges:

Lord Justice Potter, Lord Justice Brooke and Lord Justice Sedley

Citations:

Times 28-May-2002, Gazette 30-May-2002, [2002] EWCA Civ 554, [2003] QB 219

Links:

Bailii

Statutes:

Mental Health Act 1983 53

Jurisdiction:

England and Wales

Citing:

Cited – Regina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .

Cited by:

Cited – Hasan, Regina (on the Application of) v Secretary of State for Trade and Industry CA 25-Nov-2008
The claimant appealed refusal of leave to bring judicial review of decisions to sell arms to the Israeli state. He lived in Palestine and said that Israel had destroyed his farm, and that licences broke the criteria under the 2002 Act. He said that . .
Lists of cited by and citing cases may be incomplete.

Health, Administrative

Updated: 06 June 2022; Ref: scu.171225

T and others v Mental Health Review Tribunal and G: Admn 22 Feb 2002

The applicant’s former partner, G, had been detained under the Act. She had obtained an injunction to keep him away, but whilst exercising staying contact with her child, he had killed his own parents, and was now detained. The tribunal had ordered his conditional release. She sought a copy of the decision, and now sought judicial review of the refusal to supply a copy. An order had been made that the tribunal should place a note of her views among the hearing papers, and one was sent, but was not so considered.
Held: The tribunal argued that the tribunal’s activities were patient centered, not victim centered. It had never exercised its discretion to publicise a decision to a third party. The claimant argued the tribunal as a creature of statute had no jurisdiction beyond its statutory powers. Although she had no reason to be told of some elements, it might be that she should know of a condition as to residence, but not other matters such as the assessment of the risk he now presented. The tribunal had a discretion which it had failed to exercise. It should reconsider the decision as to the making of information available to the claimant and in the express light of her letter.

Judges:

The Honourable Mr Justice Scott Baker

Citations:

[2002] EWHC 247 (Admin)

Links:

Bailii

Statutes:

Mental Health Act 1983 37 41, Administration of Justice Act 1960 12, Mental Health Review Tribunal Rules 1983 (S.I 1983 No. 942) 21(5)

Jurisdiction:

England and Wales

Citing:

Cited – Pickering v Liverpool Daily Post and Echo Newspapers plc HL 1991
Damages were awarded for a breach of statutory duty where the claimant had suffered loss or damage by reason of the breach. The publication at issue went beyond reporting and ‘it reached deeply into the substance of the matter which the court had . .
Cited – Regina v Chief Constable of North Wales Police and Others Ex Parte Thorpe and Another; Regina v Chief Constable for North Wales Police Area and others ex parte AB and CB CA 18-Mar-1998
Public Identification of Pedophiles by Police
AB and CB had been released from prison after serving sentences for sexual assaults on children. They were thought still to be dangerous. They moved about the country to escape identification, and came to be staying on a campsite. The police sought . .
Lists of cited by and citing cases may be incomplete.

Health, Administrative, Information

Updated: 05 June 2022; Ref: scu.168038

Regina (Assisted Reproduction and Gynaecology Centre) v The Human Fertilisation and Embryology Authority: CA 31 Jan 2002

The applicant was undergoing fertility treatment. She wanted to have more than three eggs implanted, but permission for this was refused by the Authority. She sought to challenge that by way of judicial review.
Held: Judicial review was not the right way to challenge a scientific view. The authority is a public one, and its decisions are subject to review, but only as administrative ones. Scientists might disagree about the decision, but it could not be described as irrational.

Judges:

Lord Justice Clarke and Mr Justice Wall

Citations:

Times 21-Mar-2002, Gazette 21-Mar-2002, [2002] EWCA Civ 20, [2003] 1 FCR 266

Links:

Bailii

Statutes:

Human Fertilisation and Embryology Act 1990

Jurisdiction:

England and Wales

Cited by:

Cited – Quintavalle and Another, Regina (on the Application of) v Human Fertilisation and Embryology Authority Admn 9-Dec-2008
The claimants wished to challenge licensing decisions made by the respondent, and for a protective costs order. . .
Lists of cited by and citing cases may be incomplete.

Health, Judicial Review

Updated: 05 June 2022; Ref: scu.167907

H (A Healthcare Worker) v Associated Newspapers Limited: CA 27 Feb 2002

The applicant had been a health care worker, but was no longer working. He had come to be HIV positive, and an order was sought protecting his identity from disclosure in the press. He had evidence that the NHS guidelines on notification of patients of having been treated. He declined to provide details of his private patients for notification. He had obtained an order under the rules to protect his identity within the proceedings.
Held: The order against the newspaper would better have been obtained as part of the first action, but the two could be consolidated. The order had allowed the authority to be named, but restricted the newspaper publishing anything which might lead directly or indirectly to his identification. Both parties challenged parts of the order. The order preventing the naming of the Health Authority was intended only to protect the identity of the worker, and was properly made. There was a balancing exercise to be had, and also there was a need to respect the privacy of those who had been treated by H. The Health authority also had interests which it had a duty to protect. The court had power to protect its identity to avoid a situation which would seriously interfere with its statutory duties. The consequence of identifying the authority would include also the inevitable discovery of the identity of H. N should not be identified. H must hand over such records of his private patients as was necessary to allow a look-back exercise, and identify any who might have been at risk.

Judges:

Lord Phillips MR, Lord Justice Judge, Lord Justice Carnwath

Citations:

Times 19-Mar-2002, [2002] EWCA Civ 195

Links:

Bailii

Statutes:

Data Protection Act 1988, Civil Procedure Rules 39.2.(2), Human Rights Act 1998 Sch1 Art 10

Jurisdiction:

England and Wales

Citing:

Cited – A Health Authority v Dr X and Others CA 21-Dec-2001
Where, after a children case has been heard, a party wishes to apply for the release of papers, the application should be made before the judge who had heard the case. To do otherwise left the second judge making a difficult assessment with . .
Cited – 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, Information, Human Rights, Media, Civil Procedure Rules, Contempt of Court

Updated: 05 June 2022; Ref: scu.167703

Lee-Hirons v Secretary of State for Justice: SC 27 Jul 2016

The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed from refusal of a finding that his subsequent detention had been unlawful.
Held: Though there had been conceded breaches by the SS, ‘there is no link, let alone a direct link, between, on the one hand, the Minister’s wrongful failure for 12 days to provide to the appellant an adequate explanation for his recall and, on the other, the lawfulness of his detention. The failure did not delay reference of his case to the First-tier Tribunal. Nor has the appellant suggested that it delayed institution of the present proceedings. Even if it had created delay, the unequivocal statement of Lord Mance and Lord Hughes in the Kaiyam case about the limited effects of a violation of article 5(4) would appear to exclude the relevance of the delay to the validity of the detention itself.’
The SS did concede an infringement of the claimant’s human rights, and damages had to be assessed, as to which: ‘damages should not be payable to the appellant for the breach of his right under article 5(2) of the Convention any more than that they should be payable for the breach of his right at common law. He has failed to establish that their effects on him were sufficiently grave. Nor would a formal declaration in this court’s order add anything to my recording in this judgment of the Minister’s concessions’

Judges:

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Toulson

Citations:

[2016] UKSC 46, [2017] AC 52, [2016] 3 WLR 590, [2016] Med LR 551, [2016] WLR(D) 424, (2016) 151 BMLR 1, (2016) 19 CCL Rep 383, UKSC 2014/0248

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary

Statutes:

Human Rights Act 1998, Mental Health Act 1983 42(3)

Jurisdiction:

England and Wales

Citing:

At Admn – Lee-Hirons, Regina (on The Application of) v Secretary of State for Justice and Another Admn 28-Jun-2013
This case raises, among other matters, an issue about whether reasons for a restricted patient’s recall to detention in a hospital have to be provided orally or in writing. . .
Appeal from – Lee-Hirons, Regina (on The Application of) v The Secretary of State for Justice and Another CA 1-May-2014
The Court was asked significant questions as to the procedure to be followed when a person is recalled by the Secretary of State to be detained in a hospital under the power conferred by section 42(3) of the Mental Health Act 1983. The Appellant . .
Cited – Christie v Leachinsky HL 25-Mar-1947
Arrested Person must be told basis of the Arrest
Police officers appealed against a finding of false imprisonment. The plaintiff had been arrested under the 1921 Act, but this provided no power of arrest (which the appellant knew). The officers might lawfully have arrested the plaintiff for the . .
Cited – X v United Kingdom ECHR 5-Nov-1981
(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the . .
Cited – Fox, Campbell and Hartley v The United Kingdom ECHR 30-Aug-1990
The court considered the required basis for a reasonable suspicion to found an arrest without a warrant: ‘The ‘reasonableness’ of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and . .
Cited – Regina v Secretary of State for the Home Department Ex parte Saadi and others HL 31-Oct-2002
The applicants were Kurdish asylum seekers. The Home Secretary introduced powers to detain certain asylum seekers for a short period in order to facilitate the speedy resolution of their applications. Only those who it was suspected might run away . .
Cited – Cullen v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) HL 10-Jul-2003
The claimant had been arrested. He had been refused access to a solicitor whilst detaiined, but, in breach of statutory duty, he had not been given reasons as to why access was denied. He sought damages for that failure.
Held: If damages were . .
Cited – MM, Regina (on the Application of) v Secretary of State for the Home Department CA 6-Jul-2007
Challenge to directions given by the respondent for the recall of the appellant to a mental hospital.
Held: The breach of a condition would, if of ‘sufficient significance’ justify a recall. . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Saadi v United Kingdom ECHR 29-Jan-2008
(Grand Chamber) The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast-track processing. The decision was made pursuant to a policy under which all asylum claimants . .
Cited – Mandalia v Secretary of State for The Home Department SC 14-Oct-2015
The Court considered the guidance given to UK Border Agency case workers when considering document submitted by persons applying for leave to enter or stay in the UK as foreign students. M had applied to study here, but had not accompanied his . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – 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 – Zagidulina v Russia ECHR 2-May-2013
The Court limited itself to article 5(1)(e), when it stated that: ‘the notion of ‘lawfulness’ in the context of article 5(1)(e) of the Convention might have a broader meaning than in national legislation. Lawfulness of detention necessarily presumes . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 05 June 2022; Ref: scu.567607

Commission v Poland: ECJ 11 Jun 2015

Judgment – Failure of a Member State to fulfil obligations – Public health – Directive 2004/23/EC – Directive 2006/17/EC – Directive 2006/86/EC – Exclusion of reproductive cells, foetal tissues and embryonic tissues from the scope of national legislation transposing those directives

Citations:

C-29/14, [2015] EUECJ C-29/14, ECLI:EU:C:2015:379

Links:

Bailii

Jurisdiction:

European

Health

Updated: 05 June 2022; Ref: scu.548116

Lee-Hirons, Regina (on The Application of) v The Secretary of State for Justice and Another: CA 1 May 2014

The Court was asked significant questions as to the procedure to be followed when a person is recalled by the Secretary of State to be detained in a hospital under the power conferred by section 42(3) of the Mental Health Act 1983. The Appellant contends that his recall was effected unlawfully, and that his subsequent detention was unlawful. He claims damages for false imprisonment or pursuant to the Human Rights Act 1998.

Judges:

Jackson, Patten LJJ, Sir Stanley Burnton

Citations:

[2014] EWCA Civ 553, [2014] EWCA Civ 514, [2015] QB 385, [2014] WLR(D) 183, (2014) 138 BMLR 44, [2015] 1 QB 385, [2015] 2 WLR 256, 138 BMLR 44

Links:

Bailii, Bailii, WLRD

Statutes:

Human Rights Act 1998 8, Mental Health Act 1983 42(3)

Jurisdiction:

England and Wales

Citing:

Appeal from – Lee-Hirons, Regina (on The Application of) v Secretary of State for Justice and Another Admn 28-Jun-2013
This case raises, among other matters, an issue about whether reasons for a restricted patient’s recall to detention in a hospital have to be provided orally or in writing. . .

Cited by:

Appeal from – Lee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 05 June 2022; Ref: scu.525632

Lee-Hirons, Regina (on The Application of) v Secretary of State for Justice and Another: Admn 28 Jun 2013

This case raises, among other matters, an issue about whether reasons for a restricted patient’s recall to detention in a hospital have to be provided orally or in writing.

Judges:

Dingemans

Citations:

[2013] EWHC 1784 (Admin), [2015] 2 WLR 256, [2015] 1 QB 385

Links:

Bailii

Statutes:

Mental Health Act 1983 42(3), Human Rights Act 1998 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – Lee-Hirons, Regina (on The Application of) v The Secretary of State for Justice and Another CA 1-May-2014
The Court was asked significant questions as to the procedure to be followed when a person is recalled by the Secretary of State to be detained in a hospital under the power conferred by section 42(3) of the Mental Health Act 1983. The Appellant . .
At Admn – Lee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 05 June 2022; Ref: scu.511343

X v United Kingdom: ECHR 5 Nov 1981

(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the discharge of the patient.
Held: This advisory power did not meet the Convention requirement: ‘Nonetheless, even supposing Mental Health Review Tribunals fulfilled these conditions, they lack the competence to decide ‘the lawfulness of [the] detention’ and to order release if the detention is unlawful, as they have advisory functions only.’
What was required was a review: ‘wide enough to bear on those conditions which, according to the Convention, are essential for the ‘lawful’ detention of a person on the ground of unsoundness of mind, especially as the reasons capable of initially justifying such a detention may cease to exist . . This means that in the instant case article 5(4) required an appropriate procedure allowing a court to examine whether the patient’s disorder still persisted and whether the Home Secretary was entitled to think that a continuation of the compulsory confinement was necessary in the interests of public safety.’

Citations:

7215/75, (1982) 4 EHRR 188, [1981] ECHR 6

Links:

Bailii

Statutes:

Mental Health Act 1959, European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – 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 . .
Cited – MH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
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 – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
See Also – X v The United Kingdom ECHR 18-Oct-1982
. .
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 – Whiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
Cited – Lee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 05 June 2022; Ref: scu.187939

Regina (on the Application of Bruno Quintavalle on Behalf of Pro-Life Alliance) v Secretary of State for Health: Admn 15 Nov 2001

Where procedures produced a clone of a human cell or embryo, that was not an embryo within and subject to regulation under the Act, since there had been no process of fertilisation, which is a pre-requisite under the Act. A cloned cell could not be a ’embryo where fertilisation is complete.’

Judges:

Mr Justice Crane

Citations:

Times 05-Dec-2001, [2001] EWHC Admin 918, [2001] 4 All ER 1013

Links:

Bailii

Statutes:

Human Fertilisation and Embryology Act 1990 1(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina (Quintavalle) v Secretary of State for Health CA 18-Jan-2002
A cloned cell, a cell produced by cell nuclear replacement came within the definition of embryo under the Act. The Act required that fertilisation was complete.
Held: The act could be applied in a purposive way. The legislative policy was that . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 05 June 2022; Ref: scu.167264

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 to the statutory definition of ‘nearest relative’, the AMHP ought to have consulted the patient’s uncle. He was in fact consulted, but not in the capacity of nearest relative. Neither the patient’s mother nor the patient’s uncle objected to her admission.
Held: The AMHP had unwittingly acted outside the Act. An application for the renewed detention of a patient under section 3 was proper despite a recent tribunal ruling that the patient should be released. The social worker had a duty under the Act to admit a patient in this way when the circumstances of the Act applied. The application should have been made by way of judicial review rather than under habeas corpus. ‘there is no sense in which those concerned in a section 3 application are at any stage bound by an earlier tribunal decision.’

Judges:

Laws J

Citations:

Gazette 24-Mar-1993, [1993] QB 683, [1994] 1 All ER 161, [1993] 3 WLR 376

Statutes:

Mental Health Act 1983 2 3 4 6 11 13

Jurisdiction:

England and Wales

Cited by:

Followed – Regina (Count Franz Von Brandenburg (aka Hanley) ) v East London and The City Mental Health NHS Trust, Snazell, Approved Social worker CA 21-Feb-2001
The court was asked ‘When a mental health review tribunal has ordered the discharge of a patient, is it lawful to readmit him under section 2 or section 3 of the [Mental Health Act 1983] where it cannot be demonstrated that there has been a relevant . .
Mentioned – Regina v East London and the City Mental Health NHS Trust and Another ex parte Von Brandenburg (Aka Hanley) HL 13-Nov-2003
The patient was ordered to be discharged and released from hospital. The tribunal making the order had not accepted the medical recommendations. His release was deferred pending the finding of accommodation, but in the meantime, a social worker . .
Cited – TTM v London Borough of Hackney and Others Admn 11-Jun-2010
The claimant had said that his detention under the 1983 Act was unlawful, and that the court should issue a writ of habeas corpus for his release. Having been released he sought damages on the basis that his human rights had been infringed. The . .
Cited – 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 . .
Overruled – Davidson v Chief Constable of North Wales Police and Another CA 31-May-1993
A store detective said the plaintiffs had stolen from the store. He was wrong. The plaintiffs sought damages from the defendant for false imprisonment.
Held: If the police use their own discretion to arrest a suspect, an informer is not liable . .
Lists of cited by and citing cases may be incomplete.

Health, Torts – Other

Updated: 05 June 2022; Ref: scu.88553

Regina v North Yorkshire County Council Ex Parte Hargreaves: QBD 12 Jun 1997

The local authority’s duty to facilitate holidays for the disabled includes the power to fund the basic cost of such holidays.

Citations:

Times 12-Jun-1997

Statutes:

Chronically Sick and Disabled Persons Act 1970

Jurisdiction:

England and Wales

Citing:

See Also – Regina v North Yorkshire County Council Ex Parte Hargreaves QBD 9-Nov-1994
Both the patient and the carer were to be consulted on which place of respite care was to be offered. . .
Lists of cited by and citing cases may be incomplete.

Health, Local Government, Benefits

Updated: 05 June 2022; Ref: scu.88574

Regina v Secretary of State for the Home Department Ex Parte Harry: QBD 3 Jun 1998

The Home Secretary had the duty to make a decision on the release of a mental patient, and in doing so had no obligation to follow the recommendation of the tribunal, but he must still act fairly and disclose what was happening in the making of his decision.

Citations:

Gazette 03-Jun-1998

Statutes:

Mental Health Review Tribunal Rules 1983 (1983 No 942)

Jurisdiction:

England and Wales

Health

Updated: 05 June 2022; Ref: scu.88635

Regina v Gloucestershire County Council Ex Parte Mahfood; Same v Same Ex Parte Barry Etc: QBD 2 Aug 1996

Local Authority may allow for finances in deciding on care but must look to individual case.

Citations:

Gazette 02-Aug-1996

Statutes:

Chronically Sick and Disabled Persons Act 1970 2(1)

Jurisdiction:

England and Wales

Citing:

Appeal to – Regina v Gloucestershire County Council and Another, Ex Parte Barry HL 21-Mar-1997
The House considered the need when assessing community care provision to include considerations of the cost and resources for care. The case concerned a question about the relevance of cost and arose in the context of a duty to make certain . .

Cited by:

Appeal from – Regina v Gloucestershire County Council and Another, Ex Parte Barry HL 21-Mar-1997
The House considered the need when assessing community care provision to include considerations of the cost and resources for care. The case concerned a question about the relevance of cost and arose in the context of a duty to make certain . .
Lists of cited by and citing cases may be incomplete.

Local Government, Health

Updated: 05 June 2022; Ref: scu.88473

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 been formally detained.
Held: The appeal succeeded. His detention had not been so complete as to constitute the tort of false imprisonment. The appellant had been properly detained using the informal procedure. The medical steps taken were valid under the common law doctrine of necessity. Under the common law doctrine of necessity there was power to detain and restrain patients who lack capacity and where detention was necessary in their own best interests.
Lord Steyn identified the existence of a lacuna: ‘The common law principle of necessity is a useful concept but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrists . . neither habeas corpus nor judicial review are sufficient safeguards against misjudgements and professional lapses in the case of compliant incapacitated patients.’

Judges:

Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Nolan, Lord Steyn, Lord hope of Craighead

Citations:

Gazette 22-Jul-1998, Times 30-Jun-1998, [1998] UKHL 24, [1998] Fam Law 592, [1999] AC 458, [1998] 3 All ER 289, [1998] 3 WLR 107, [1998] 2 FLR 550, [1998] 2 FCR 501

Links:

House of Lords, Bailii

Statutes:

Mental Health Act 1983 3

Jurisdiction:

England and Wales

Citing:

At CA – Regina v Bournewood Community and Mental Health NHS Trust, Ex parte L CA 2-Dec-1997
The applicant was severely autistic, and unable to consent to medical treatment. He had been admitted voluntarly to a mental hospital and detained under common law powers. The Hospital trust appealed a finding that his detention had been unlawful. . .
Distinguished – Black v Forsey HL 20-May-1988
The common law was called in aid to supplement the statutory power of compulsory detention to fill a lacuna which had appeared in the 1984 Act.
Held: The common law could not be invoked for that purpose, because the powers of detention . .
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 – Syed Mahamad Yusuf-ud-Din v Secretary of State for India 1903
For the tort of false imprisonment to be committed, the deprivation of liberty must be actual, rather than potential: ‘Nothing short of actual detention and complete loss of freedom would support an action for false imprisonment.’ . .
Cited – Meering v Grahame-White Aviation Co Ltd CA 1919
An unconscious or drugged person may be detained. For the tort of false imprisonment there must be shown a complete restriction in fact on the plaintiff’s freedom to move: ‘any restraint within defined bounds which is a restraint in fact may be an . .
Cited – Rex v Coate 1772
There is a common law power to detain persons for their own protection for mental health reasons. . .
Cited – Scott v Wakem 1862
If it could be shown to be necessary to protect him from harming himself, the common law gave power for a man to be detained. . .
Cited – Symm v Fraser 1863
The common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary. . .
Cited – Murray v Ministry of Defence HL 25-May-1988
The plaintiff complained that she had been wrongfully arrested by a soldier, since he had not given a proper reason for her detention.
Held: The House accepted the existence of an implied power in a statute which would be necessary to ensure . .
Cited – Dallinson v Caffery 1965
When considering an allegation of false imprisonment, the element of detention or imprisonment is a pure issue of fact for the jury and the element of justification is one in which the judge has a role to play. . .
Cited – Collins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
At Admn – L v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .

Cited by:

Cited – L v United Kingdom ECHR 5-Oct-2004
The claimant had suffered mental illness and threatened to hurt himself. He was taken into hospital as a voluntary patient, but in effect detained compulsorily. He lacked capacity to consent to medical treatment.
Held: The holding of a patient . .
At House of Lords – 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 – 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 – MH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
Cited – 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 – In Re F (Adult: Court’s Jurisdiction) CA 25-Jul-2000
The local authority sought a declaration as to its rights to control the daily activities of an eighteen year old, who was incapable of managing her own affairs but was not subject to mental health legislation.
Held: There remained an inherent . .
Cited – 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 HL – HL v United Kingdom ECHR 10-Sep-2002
(Admissibility) Whether a detention amounts to a deprivation of liberty depends upon all the facts and circumstances of the particular case . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited – 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 . .
At HL – L v United Kingdom ECHR 5-Oct-2004
The claimant had suffered mental illness and threatened to hurt himself. He was taken into hospital as a voluntary patient, but in effect detained compulsorily. He lacked capacity to consent to medical treatment.
Held: The holding of a patient . .
Cited – Jalloh, Regina (on the application of) v Secretary of State for the Home Department SC 12-Feb-2020
Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of . .
Lists of cited by and citing cases may be incomplete.

Health, Health Professions, Torts – Other

Updated: 05 June 2022; Ref: scu.135169

HL v United Kingdom: ECHR 10 Sep 2002

(Admissibility) Whether a detention amounts to a deprivation of liberty depends upon all the facts and circumstances of the particular case

Citations:

[2002] ECHR 850, 45508/99, [2004] 40 EHRR 761

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

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

Cited by:

See Also – 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 – Roberts, Regina (on the application of) v Commissioner of Police of the Metropolis and another SC 17-Dec-2015
The Court considered the validity of suspicionless stop and search activities under s 60 of the 1994 Act, by police officers.
Held: The claimant’s appeal failed. The safeguards attending the use of the s 60 power, and in particular the . .
Admissibility – L v United Kingdom ECHR 5-Oct-2004
The claimant had suffered mental illness and threatened to hurt himself. He was taken into hospital as a voluntary patient, but in effect detained compulsorily. He lacked capacity to consent to medical treatment.
Held: The holding of a patient . .
Cited – Jalloh, Regina (on the application of) v Secretary of State for the Home Department SC 12-Feb-2020
Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 05 June 2022; Ref: scu.443295

Regina (Wirral Health Authority and Another) v Mental Health Review Tribunal and Another: CA 13 Nov 2001

The applicant had been detained under the Act. His detention had been ended by the Mental Health Tribunal, but he had been detained again under s3. The decision was later quashed, and he asserted that upon that decision, an earlier sentence of imprisonment took effect, preventing his re-detention. The Tribunal’s detention was later quashed.
Held: Where an inferior tribunal’s decision was unlawful, the High Court could quash it. the effect of quashing the decision was that the tribunal had never made the decision to discharge.

Judges:

Lord Justice Clarke, Lord Justice Mance and Lord Justice Dyson

Citations:

Times 26-Nov-2001, Gazette 10-Jan-2002, [2001] EWCA Civ 1901

Links:

Bailii

Statutes:

Mental Health Act 1983 37, 3

Jurisdiction:

England and Wales

Health, Criminal Sentencing

Updated: 04 June 2022; Ref: scu.166856

Regina (Wilkinson) v Broadmoor Special Hospital and Others: CA 22 Oct 2001

A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to challenge by judicial review the imposition of treatment without his consent, it was open to the court to investigate the merits of the decision to impose treatment, and it was not restricted to testing the reasonableness of the decision. This would include the power of the court to require the attendance and examination of medical witnesses. Had the patient proceeded by way of a claim for damages for assault that power would have existed. If the patient’s human rights were to be respected, an investigation of the merits must be allowed.

Judges:

Lord Justice Simon Brown, Lord Justice Brooke and Lady Justice Hale

Citations:

Gazette 15-Nov-2001, [2001] EWCA Civ 1545, [2002] 1 WLR 419, Times 02-Nov-2001, (2002) Lloyd’s Rep Med 41, (2002) UKHRR 390, (2002) 65 BMLR 15

Links:

Bailii

Statutes:

Mental Health Act 1983 58(3)(b), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Cited by:

Applied – Regina (G) v Ealing London Borough Council and Others QBD 28-Feb-2002
Nothing in the new rules prevented the court from allowing cross examination of witnesses in judicial review cases, though the procedure does not lend itself to cases with a high degree of factual debate. The court has a wide discretion, and the . .
Cited – Wooder, Regina (on the Application of) v Feggetter and Dr Grah CA 25-Apr-2002
The patient challenged the treatment given to him against his will as a detained mental patient. He said the opinion of the second doctor as required under the Act, had not been put into writing.
Held: Following Wilkinson, which allowed a . .
Cited – Regina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
Cited – PS, Regina (on the Application of) v Responsible Medical Officer, Dr G and others Admn 10-Oct-2003
The claimant had been compulsorily detained under the Act. He complained that the detention and compulsory medication infringed his rights, and amongst other things breached his religious beliefs.
Held: This was an exceptional case requiring . .
Cited – B, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
Cited – MH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
Cited – B, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
Cited – T-Mobile (Uk) Ltd. and Another v Office of Communications CA 12-Dec-2008
The claimant telecoms companies objected to a proposed scheme for future licensing of available spectrum. The scheme anticipated a bias in favour of auctioniung such content. It was not agreed whether any challenge to the decision should be by way . .
Cited – Al-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Q, Regina (on The Application of) v Q Constabulary and Another Admn 17-Mar-2011
The claimant renewed his request for an order against the defendant that he should be given a place on a witness protection scheme. He had given evidence for the prosecution in a gangland murder trial. A risk assessment had identified a risk ‘real . .
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 . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Administrative

Updated: 04 June 2022; Ref: scu.166719

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 conclusion that a mental disorder is of such a kind or degree as to warrant compulsory confinement can only be justified if other, less severe measures, have been considered and found to be insufficient to safeguard the person of unsound mind.

Citations:

[2000] ECHR 140, 26629/95, [2000] ECHR 141

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 5(1)(e)

Cited by:

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

Human Rights, Health

Updated: 04 June 2022; Ref: scu.165850

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 hearing in June 1989 the opinion was that he was no longer suffering from mental illness but needed supervision if released. He was ordered for conditional discharge, subject to psychiatric supervisiona residence. His discharge was deferred until for accommodation to be found. It was not found. In 1990, he sought an absolute discharge, but the tribunal again directed a conditional discharge until suitable accommodation was found. A trial in another hospital unsuccessful and he was returned to Rampton. Another review repeated the same order. At a final review in 1993, the tribunal ordered his absolute discharge on the basis that he ‘is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled for further treatment’. Mr Johnson was accordingly released from hospital. He first contended was that the tribunal should have ordered his immediate and unconditional release. The Court rejected this contention, recognising the desirability of rehabilitation in the community and found no violation in the imposition of conditions to that end. Mr Johnson’s alternative submission was that conditions must not hinder immediate or near immediate release and certainly not delay it excessively as had occurred in this case. This argument succeeded. ‘It is however of paramount importance that appropriate safeguards are in place so as to ensure that any deferral of discharge is consonant with the purpose of Article 5(1) and with the aim of the restriction in [Article 5(1)] sub-paragraph (e) and, in particular, that discharge is not unreasonably delayed.’ The Court drew attention to the absence of power in the tribunal or the authorities to ensure that the conditions could be implemented within a reasonable time, and to the 12-monthly interval between tribunal reviews, and concluded: ‘In these circumstances it must be concluded that the imposition of the hostel residence condition by the June 1989 Tribunal led to the indefinite deferral of the applicant’s release from Rampton Hospital especially since the applicant was unwilling after October 1990 to co-operate further with the authorities in their efforts to secure a hostel, thereby excluding any possibility that the condition could be satisfied. While the 1990 and 1991 Tribunals considered the applicant’s case afresh, they were obliged to order his continued detention since he had not yet fulfilled the terms of the conditional discharge imposed by the June 1989 Tribunal. Having regard to the situation which resulted from the decision taken by the latter Tribunal and to the lack of adequate safeguards including provision for judicial review to ensure that the applicant’s release from detention would not be unreasonably delayed, it must be considered that his continued confinement after 15 June 1989 cannot be justified on the basis of Article 5(1)(e) of the Convention. For these reasons the Court concludes that the applicant’s continued detention after 15 June 1989 constituted a violation of Article 5(1) of the Convention.’ The lack of a system for discharging mental patients whose treatment was no longer necessary, was a breach of the convention.
The court awarded andpound;10,000 in damages.

Citations:

Times 04-Dec-1997, 22520/93, (1997) 27 EHRR 296, [1997] ECHR 88, (1998) 40 BMLR 1, [2010] ECHR 1857, [2010] ECHR 1859, [1998] HRCD 41, (1999) 27 EHRR 296

Links:

Worldlii, Bailii, Bailii, Bailii

Statutes:

European Convention on Human Rights 5.1

Jurisdiction:

Human Rights

Cited by:

Cited – Regina (IH) v Secretary of State for the Home Department and Another CA 15-May-2002
The applicant was a restricted mental patient. His conditional release had been ordered, but required a consultant psychiatrist to be found who would agree to supervise him. None such could be found, and his detention continued. After two years he . .
Cited – 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 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 . .
Cited – Regina (on the application of K) v Camden and Islington Health Authority CA 21-Feb-2001
The duty of a local authority to seek to provide resources to care for a mental patient after release into the community, is not absolute, and is subject to the limitations of the availability of a sufficient budget. A continued detention in . .
Cited – Regina v East London and the City Mental Health NHS Trust and Another ex parte Von Brandenburg (Aka Hanley) HL 13-Nov-2003
The patient was ordered to be discharged and released from hospital. The tribunal making the order had not accepted the medical recommendations. His release was deferred pending the finding of accommodation, but in the meantime, a social worker . .
Cited – 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 – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 04 June 2022; Ref: scu.165568

Herczegfalvy v Austria: ECHR 24 Sep 1992

The applicant was detained in an institution for mentally deranged offenders. While so detained he was subjected to the forcible administration of food and neuroleptics and to handcuffing to a security bed. He complained of violation of his Article 3 and 8 rights. One of his complaints was as to interference with his correspondence.
Held: It is for medical authorities to decide, on recognised medical standards to be used, in teatment, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of Article 3, the requirements of which permit no derogation. The established principles of medicine are in principle decisive in such cases; a method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.
Here however the patient succeeded in his complaint about interference by the hospital with his private mail. ‘These vaguely worded provisions do not specify the scope or conditions of exercise of the discretionary power which was at the origin of the measures complained of. But such specifications appear all the more necessary in the field of detention in psychiatric institutions in that the persons concerned are frequently at the mercy of the medical authorities, so that their correspondence is their only contact with the outside world. Admittedly, as the court has previously stated, it would scarcely be possible to formulate a law to cover every eventuality. For all that, in the absence of any detail at all as to the kind of restrictions permitted or their purpose, duration and extent, or the arrangements for their review, the above provisions do not offer a minimum of degree of protection against arbitrariness required by the rule of law in a democratic society. According to the information provided to the Court, there has been no case law to remedy this state of affairs. There has therefore been a violation of Article 8 of the Convention.’

Citations:

10533/83, [1992] ECHR 58, (1992) 15 EHRR 437, [1992] ECHR 83

Links:

Worldlii, Bailii, Bailii

Cited by:

Cited – Regina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
Cited – 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 – PS, Regina (on the Application of) v Responsible Medical Officer, Dr G and others Admn 10-Oct-2003
The claimant had been compulsorily detained under the Act. He complained that the detention and compulsory medication infringed his rights, and amongst other things breached his religious beliefs.
Held: This was an exceptional case requiring . .
Cited – Murray v The Parole Board Secretary of State for the Home Department CA 6-Nov-2003
The applicant had been convicted of murder and sentenced to life imprisonment. He had twice previously been released on licence and had his licence revoked. His tarriff had expired The period between reviews of his detention had been two years, but . .
Cited – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
Cited – B, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
Cited – Nevmerzhitsky v Ukraine ECHR 5-Apr-2005
ECHR Judgment (Merits and Just Satisfaction) – Violations of Art. 3 (on account of torture and degrading treatment); Violation of Art. 5-1 (c); Violations of Art. 5-3 (on account of the lack of prompt judicial . .
Cited – B, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and Another QBD 29-Oct-2008
The applicant suffered mutiple sclerosis and considered that she might wish to go abroad to end her life. She asked the court to make more clear the guidance provided by the Director as to whether her partner might be prosecuted under section 2(1) . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and Another Admn 29-Oct-2008
The applicant said that the defendant had unlawfully failed to provide detailed guidance under section 10 of the 1985 Act, on the circumstances under which a prosecution might lie of a person performing acts which might assist another to commit . .
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 – Juhnke v Turkey ECHR 13-May-2008
Medical treatment, may well be experienced as degrading by a patient who is subjected to it against his will, but ‘A measure which is therapeutically necessary from the point of view of established principles of medicine cannot in principle be . .
Mentioned – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 04 June 2022; Ref: scu.165217

United Kingdom v Commission: ECJ 5 May 1998

ECJ Order – 1. It is open to the Court hearing an application for interim relief to order the suspension of the operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as it must, in order to avoid serious and irreparable damage to the applicant’ s interests, be made and produce its effects before a decision is reached in the main action. The Court is also to balance the interests at stake. Suspension and other measures granted under Article 186 of the Treaty must, moreover, be provisional inasmuch as they must not prejudge the points of law or fact in issue or neutralize in advance the effects of the decision subsequently to be given in the main action.
In the context of that overall examination, the Court hearing the application enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a preestablished scheme of analysis by reference to which the need to order interim measures must be assessed.
2. The urgency of an interim measure must be considered by reference to whether it is necessary to make a provisional ruling in order to avoid the occurrence of serious and irreparable harm as a result of immediate application of the measure contested in the main action. As regards the nature of the harm which may be invoked, it must be noted that the Member States are responsible for those interests, in particular of an economic and social nature, which are regarded as general interests at national level and are thereby entitled to defend such interests before the courts. They may therefore invoke damage affecting a whole sector of their economy, in particular when the contested Community measure may entail unfavourable repercussions on the level of employment and the cost of living.
3. Where an applicant seeking suspension of operation of a measure invokes the risk of its suffering serious and irreparable harm, the Court hearing the application must determine, when balancing the interests at stake, whether the possible annulment of the contested decision by the Court seised of the main action would allow the situation brought about by its immediate implementation to be reversed and, conversely, whether suspension of the operation of that decision would be such as to prevent its being fully effective in the event of the main application being dismissed.
4. An application by the United Kingdom for suspension of the operation of Commission Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy or even of part of it, or for interim measures qualifying its application, cannot be granted. Whilst some of the pleas in law put forward by the Member State contesting the lawfulness of that decision cannot be wholly ruled out at the stage of examination of the interim application, the Commission has none the less presented serious arguments as to the lawfulness of its decision as a whole. Furthermore, the balancing of the interests at stake inevitably leads to recognition that the protection of public health against a fatal risk, which can in no way be ruled out in the present state of scientific knowledge, must take precedence over the economic and social damage which the Member State may invoke as being likely to result from the application of the said decision, even if that damage is not easily reparable.
Europa In order for an act of the Council or the Commission to form the subject-matter of an action for annulment, it must be intended to have legal effects. That is not the position in the case of an act of the Commission which reflects its intention, or that of one of its departments, to follow a particular line of conduct or which merely confirms a previous act in such a way that annulment of the confirmatory act would follow from annulment of the previous act.
In adopting Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy, which imposes, on a temporary basis, a total ban on exports of bovine animals, bovine meat and derived products from the territory of the United Kingdom to the other Member States and to third countries, the Commission acted within the framework of the powers conferred on it by Directives 90/425 and 89/662 concerning veterinary and zootechnical checks applicable in intra-Community trade. First, the conditions governing the adoption of safeguard measures in accordance with those two directives were fulfilled, particularly since the power to adopt such measures is justified by the fact that a zoonosis, disease or other cause is likely to constitute a serious hazard. Second, having regard, in particular, to the fact that the directives are drafted in very wide terms, without imposing any restrictions as to the temporal or territorial scope of the measures concerned, it does not appear that the Commission clearly exceeded the bounds of its broad discretion in seeking to contain the disease within the territory of the United Kingdom by banning exports from that territory to other Member States and to third countries. Lastly, the decision is not vitiated by misuse of powers, since the Commission was prompted to act by concerns as to the risk of transmissibility of bovine spongiform encephalopathy to humans, after examining the measures adopted by the United Kingdom and consulting the Scientific Veterinary Committee and the Standing Veterinary Committee, its exclusive or main purpose not being to protect economic interests rather than health.
Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy, which imposes, on a temporary basis, a total ban on exports of bovine animals, bovine meat and derived products from the territory of the United Kingdom to the other Member States and to third countries, fulfils the requirement to provide a statement of reasons, does not breach the principles of proportionality, non-discrimination or legal certainty and is in accordance with the objectives of the common agricultural policy set out in Article 39(1) of the Treaty. As regards, more particularly, the principle of proportionality, it was open to the Commission, in view of the great uncertainty as to the risks posed by the animals and products concerned, to take the protective measures in issue without having to wait until the reality and seriousness of those risks became fully apparent. As regards the principle of non-discrimination laid down in the second subparagraph of Article 40(3) of the Treaty, the fact that, at the time of adoption of the decision, almost all the cases of bovine spongiform encephalopathy in Europe were recorded in the United Kingdom meant that the situation in that Member State could not be regarded as comparable with that in the other Member States.
Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty. In that connection, and having regard to the importance of the role played by the free movement of animals, animal products and products of animal origin in achieving those objectives, Article 43 constituted the appropriate legal basis for the adoption of Directives 90/425 and 89/662 concerning veterinary and zootechnical checks applicable in intra-Community trade, even though those directives authorise the Commission incidentally to adopt safeguard measures covering `products of animal origin’, `products derived from those products’ and `products derived’ from animals which are not included in Annex II to the Treaty.

Citations:

Times 06-May-1998, C-180/96, [1996] EUECJ C-180/96R

Links:

Bailii

Statutes:

EC Treaty 185 186

Citing:

See Also – United Kingdom v Commission (Rec 1996,p I-3903) (Order) ECJ 12-Jul-1996
. .

Cited by:

Cited – United Kingdom v Commission ECJ 5-May-1998
Agriculture – Animal health – Emergency measures against bovine spongiform encephalopathy – ‘Mad cow disease’ . .
Lists of cited by and citing cases may be incomplete.

European, Agriculture, Health, Animals

Updated: 03 June 2022; Ref: scu.161875

Regina v Licensing Authority of the Department of Health and Norgine, ex parte Scotia Pharmaceuticals (Judgment): ECJ 5 Oct 1995

Europa Point (8)(a)(ii) of the second paragraph of Article 4 of Directive 65/65 concerning proprietary medicinal products, as amended by Directive 87/21, which establishes in certain circumstances an abridged procedure for the issue of marketing authorization for proprietary medicinal products and lays down the conditions under which recourse may be had to that procedure, must, having regard both to the fundamental objective of the directive, which is to safeguard public health, and to the need to ensure that recourse to simplified procedures for marketing products similar to those already authorized does not result in damage to the interests of innovative firms, be interpreted as meaning that a national authority with competence to issue national marketing authorization cannot have discretion to issue authorization under the abridged procedure when the abovementioned conditions have not been satisfied. That means that such authorization may not be issued where the particulars and documents submitted in support of an application do not contain detailed references to published scientific literature presented in accordance with each of the requirements laid down in Parts 2 and 3 of the Annex to Directive 75/318 concerning analytical, pharmacotoxicological and clinical standards and protocols in respect of the testing of proprietary medicinal products, and where those documents do not comprise experts’ reports complying with each of the requirements laid down in Articles 1 and 2 of Directive 75/319 concerning proprietary medicinal products.

Citations:

C-440/93, [1995] EUECJ C-440/93

Links:

Bailii

European, Health

Updated: 03 June 2022; Ref: scu.161220

Re Cumming: CA 1852

Knight Bruce LJ said: ‘It is the right of an English person to require that the free use of his property, and personal freedom, shall not be taken from him on the ground of alleged lunacy, without being allowed the opportunity of establishing his sanity or denying his insanity before a jury as a contesting party, not merely as a subject of inquiry.’

Judges:

Knight Bruce LJ

Citations:

[1852] 1 De GMandG 537

Jurisdiction:

England and Wales

Cited by:

Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 02 June 2022; Ref: scu.259607

Savage v South Essex Partnership NHS Foundation Trust: QBD 21 Dec 2006

The claimant’s daughter had died after walking out of a mental health ward and being knocked down. She sought damages alleging negligence and in infringement of her daughter’s right to life.
Held: Negligence amounting to a breach of the right to life had to be gross negligence at a level which might support a charge of manslaughter. Clinical negligence only had been alleged, and the allegation of a breach of the deceased’s right to life must fail.

Judges:

Swift J

Citations:

Times 16-Feb-2007, [2006] EWHC 3562 (QB), [2006] Inquest LR 235, [2007] LS Law Medical 291

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

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 – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .

Cited by:

Appeal from – Savage v South Essex Partnership NHS Foundation Trust and Another CA 21-Dec-2007
The claimant said that the defendant hospital had been negligent in failing to prevent her daughter escaping from the mental hospital at which she was detained and committing suicide.
Held: The status of a detained mental patient was more akin . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Human Rights, Health

Updated: 02 June 2022; Ref: scu.251415

Kostic v Chaplin and others: ChD 15 Oct 2007

The deceased had for several years suffered a delusional disorder. The validity of his last two wills was challenged. In one had had left his entire estate to the Conservative Party.
Held: The wills were invalid. It was clear that when made, the testator’s mind was so poisoned by his delusions as to leave him unable to appreciate his proper duties to his son. Though a genuine supporter of the Conservative Party, his actual support was consistently tinged wih evidence of his delusions.

Judges:

Henderson J

Citations:

[2007] EWHC 2298 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Charles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 02 June 2022; Ref: scu.259856

Regina v Secretary of State for Health, ex parte Gallaher and others (Judgment): ECJ 22 Jun 1993

Member States may decide size of government health warnings on cigarettes
ECJ Articles 3(3) and 4(4) of Directive 89/622 on the labelling of tobacco products provide respectively that the indications of tar and nicotine yields and the general and specific health warnings that cigarette packets must carry shall cover at least 4% of the surfaces for which they are intended. Those provisions must be interpreted as meaning that, if they consider it to be necessary, Member States are at liberty to decide, so far as domestic production is concerned, that those indications and warnings should cover a greater surface area in view of the level of public awareness of the health risks associated with tobacco consumption. In so far as those Member States cannot make subject to the same requirement products imported from the other Member States which comply with the minimum requirements of the directive, there is a risk of less favourable treatment for national products and of inequality in conditions of competition, although this is inherent in harmonization which confines itself to laying down minimum requirements.

Citations:

Times 28-Jun-1993, C-11/92, [1993] EUECJ C-11/92

Links:

Bailii

Statutes:

Directive 89/622 3(3) 4(4)

Cited by:

Cited – Khatun, Zeb, Iqbal v London Borough of Newham Admn 10-Oct-2003
Each applicant had been accepted as homeless by the respondent, but was then offered alternative accomodation under terms which they found unacceptable. They argued that the Regulations applied. The council had disapplied one statutory guidance in . .
Lists of cited by and citing cases may be incomplete.

European, Health, Media

Updated: 01 June 2022; Ref: scu.160847

In re Estate of Park (deceased), Park v Park: CA 2 Jan 1953

The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was free of morbid delusions, and capable of appreciating the normal duties and responsibilities of a marriage. The test of capacity is issue specific. A person might have capacity for one purpose while simultaneously lacking it for another. Singleton LJ said: ‘Was the deceased on the morning of May 30, 1949, capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To understand the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.’ The decision was affirmed.

Judges:

Birkett LJ, Hodson LJ, Singleton LJ

Citations:

[1953] 2 All ER 1411, [1954] P 112, [1954] 97 Sol Jo 830

Jurisdiction:

England and Wales

Citing:

Appeal from – In re Estate of Park (deceased), Park v Park ChD 1953
The deceased had executed his will in which he was described as a widow, whereas in fact he had recently re-married. He was elderly and physically and mentally infirm. A relative alleged that the most recent marriage had been invalid for his lack of . .

Cited by:

Cited – Sheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Lists of cited by and citing cases may be incomplete.

Family, Health

Updated: 31 May 2022; Ref: scu.223063

Rahma Khana (By Her Litigation Friend, the Official Solicitor) v Mayor and Burgesses of London Borough of Southwark: CA 28 Jun 2001

The applicant was an elderly Iraqi lady with poor sight and mental illness. The local authority decided that she needed care in a residential home. She applied for a two bed-roomed ground floor flat, which would allow her to live with her extended family and among others who spoke her language. The court held that given that the conclusion and recommendation were not challenged as such, the court could not intervene. The authority had satisfied its statutory obligations, which did not require it to satisfy preferences.

Judges:

Henry, Mance LJJ, McKinnon J

Citations:

Gazette 31-Aug-2001, Times 25-Sep-2001, [2001] EWCA Civ 999

Links:

Bailii

Statutes:

National Assistance Act 1948, National Health Service and Community Care Act 1990

Jurisdiction:

England and Wales

Local Government, Health

Updated: 31 May 2022; Ref: scu.147599

Regina (on the application of H) v Mental Health Review Tribunal, North and East London Region: CA 28 Mar 2001

The section placed the burden upon a specially restricted patient to prove that he was not suffering from a mental disorder of a nature or degree requiring him to be detained, before the Tribunal could order his release. This shifting of the burden was in breach of his human rights not to be detained. It was not possible to construe the section to achieve compatibility, and a declaration of incompatibility was made.

Citations:

Times 02-Apr-2001, Gazette 24-May-2001, [2001] EWCA Civ 415, [2002] QB 1

Links:

Bailii

Statutes:

Mental Health Act 1983 72 73, Human Rights Act 1998

Jurisdiction:

England and Wales

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

Health, Human Rights

Updated: 31 May 2022; Ref: scu.147486

Regina (Count Franz Von Brandenburg (aka Hanley) ) v East London and The City Mental Health NHS Trust, Snazell, Approved Social worker: CA 21 Feb 2001

The court was asked ‘When a mental health review tribunal has ordered the discharge of a patient, is it lawful to readmit him under section 2 or section 3 of the [Mental Health Act 1983] where it cannot be demonstrated that there has been a relevant change of circumstances?’
Held: There was nothing to prevent the social worker applying again for the re-admission of a mental patient who had been discharged by a decision of the mental health tribunal, against the balance of medical opinion, and even though there had been no demonstrable change in the situation, provided only that the application was not made within a very few days of the tribunal’s decision. There was an implied exception to the general rule requiring a change in circumstances. The doctors and social workers exercised an independent professional judgement.

Judges:

Lord Phillips of Worth Matravers

Citations:

Gazette 12-Apr-2001, Times 28-Feb-2001, [2001] EWCA Civ 239, [2002] QB 235

Links:

Bailii

Statutes:

Mental Health Act 1983 2 3

Jurisdiction:

England and Wales

Citing:

Appealed to – Regina v East London and the City Mental Health NHS Trust and Another ex parte Von Brandenburg (Aka Hanley) HL 13-Nov-2003
The patient was ordered to be discharged and released from hospital. The tribunal making the order had not accepted the medical recommendations. His release was deferred pending the finding of accommodation, but in the meantime, a social worker . .
Followed – 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 . .
Appeal from – Regina v Tower Hamlets Health Care NHS Trust and Snazell ex parte Von Brandenburg Admn 26-Jun-2000
. .

Cited by:

Appeal from – Regina v East London and the City Mental Health NHS Trust and Another ex parte Von Brandenburg (Aka Hanley) HL 13-Nov-2003
The patient was ordered to be discharged and released from hospital. The tribunal making the order had not accepted the medical recommendations. His release was deferred pending the finding of accommodation, but in the meantime, a social worker . .
Appealed to – Regina v Tower Hamlets Health Care NHS Trust and Snazell ex parte Von Brandenburg Admn 26-Jun-2000
. .
Cited – Regina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 31 May 2022; Ref: scu.147443

X v Secretary of State for Home Department: CA 7 Dec 2000

The applicant applied for asylum, but suffered from schizophrenia. He had been refused entry and detained, and then his detention was transferred to a mental hospital by order of the Home Secretary, with a view to his return for treatment in Malta. The applicant alleged that the Secretary had no power to so order without going first to the Mental Health Review Tribunal.
Held: the Secretary’s duties were not solely to look to the applicant’s bests interests, but also to immigration control. Nevertheless it was argued that to move a person under treatment could amount to inhuman or degrading treatment. In this case that argument failed. It could not be assumed that he would not receive proper health care in Malta. It was also argued that once subject to the Mental Health Act, he could only be dealt with under that Act. Parliament had not circumscribed the Home Secretary’s Immigration Act powers, and those remained in effect. Appeal refused.

Judges:

Lord Justice Schiemann, Lord Justice Tuckey, And Sir Swinton Thomas

Citations:

[2000] EWCA Civ 311

Links:

Bailii

Statutes:

Immigration Act 1971 2(1)(b), 86(2), Mental Health Act 1983 47, 86

Jurisdiction:

England and Wales

Immigration, Health, Human Rights

Updated: 31 May 2022; Ref: scu.147344

SL (By Her Litigation Friend, the Official Solicitor) v SL (Her Mother): CA 18 May 2000

SL a young adult woman suffered learning difficulties and it was anticipated that she would be cared for oin a nursing home. Her mother now sought a declaration that she should be sterilised despit eher inability to consent.
Held: The appeal succeeded. The court had erred in its assessment of the evidence, and a less invasive treatment, which might well work, should be tried first.

Citations:

[2000] EWCA Civ 162

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 31 May 2022; Ref: scu.147195

Regina v Mental Health Review Tribunal; Torfaen County Borough Council and Gwent Health Authority (ex parte Russell Hall): CA 30 Jul 1999

A patient having been convicted of manslaughter eventually applied for release. The authorities were concerned that he might have a spontaneous recurrence of his condition, but delayed preparation of a plan for his release. The Tribunal refused to order his release despite the delay. A review of the Tribunal failed because the Tribunal had no power to order preparation of a plan.

Judges:

Lord Justice Kennedy Lord Justice Ward Lord Justice Tuckey

Citations:

Times 05-Oct-1999, Gazette 02-Sep-1999, [1999] EWCA Civ 2052

Links:

Bailii

Statutes:

Mental Health Act 1983 117

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Mental Health Review Tribunal; Torfaen County Borough Council and Gwent Health Authority ex parte Hall Admn 23-Apr-1999
The tribunal had ordered the conditional discharge of the patient, subject to conditions to be satisfied by the local health authority. The authority had failed to make the arrangements which would have satisfied the relevant conditions, and as a . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 31 May 2022; Ref: scu.146967

North West Lancashire Health Authority v A D and G: CA 29 Jul 1999

A decision not to fund gender re-assignment surgery was operated as a blanket policy without proper regard for individual cases and so was unlawful as an effective fetter on the discretion which the Health Authority was obliged to exercise. A lawful policy giving low priority was possible if it recognised clinical need and treated each request on its merits.
Auld LJ said: ‘it is an unhappy but unavoidable feature of state funded health care that regional health authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each authority, in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each authority, keeping well in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible.’ A policy which allows for exceptions in undefined exceptional circumstances is not unlawful ‘provided that the policy genuinely recognises the possibility of there being an overriding clinical need and requires each request for treatment to be considered on its individual merits.’

Judges:

Auld LJ, Buxton LJ

Citations:

Times 24-Aug-1999, [1999] EWCA Civ 2022, [2000] 1 WLR 977

Links:

Bailii

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 – In Re Findlay, in re Hogben HL 1985
A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person . .

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 . .
Interpreted – 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 . .
Cited – AC v Berkshire West Primary Care Trust, Equality and Human Rights Commissions intervening Admn 25-May-2010
The claimant, a male to female transsexual, challenged a decision by the respondent to refuse breast augmentation treatment. The Trust had a policy ‘GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not . .
Still good law – A, Regina (on the Application of) v West Middlesex University Hospital NHS Trust Admn 11-Apr-2008
A sought judicial review of the decision of the defendants not to provide him with free medical care. The defendants had relied on National Guidance. He was an asylum applicant with temporary admission but claimed that he was ordinarily resident in . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 31 May 2022; Ref: scu.146937

Regina v Secretary of State for Health ex parte Eastside Cheese Company (a Firm) and R A Duckett and Co Interested: CA 1 Jul 1999

The respondent had made an order banning the processing of milk products from the interested party’s farm into cheese products. Cheese manufacturers objected to the order. The order had been held unlawful, and the Secretary of State now appealed.
Held: Proportionality itself is not always equated with intense scrutiny

Judges:

Lord Bingham of Cornhill LCJ, Otton, Robert Walker LJJ

Citations:

[1999] EWCA Civ 1739, (2000) 2 LGLR 41, [1999] COD 321, [1999] 3 CMLR 123, (2000) 55 BMLR 38, [1999] EuLR 968, [2000] EHLR 52

Links:

Bailii

Statutes:

Food Safety Act 1990 13

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Secretary of State for Health, ex parte Eastside Cheese Company QBD 1-Dec-1998
An order made by the Secretary of State for a cheese manufacturer to cease production and to seize product without compensation as an emergency was disproportionate where the local officers had adequate power under section 9 under which compensation . .
See Also – Regina v Secretary of State for Health ex parte Eastside Cheese Company (a Firm) and R A Duckett and Co Interested CA 1-Jul-1999
Application for leave to appeal to House of Lords – refused. However ‘on public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible . .

Cited by:

See Also – Regina v Secretary of State for Health ex parte Eastside Cheese Company (a Firm) and R A Duckett and Co Interested CA 1-Jul-1999
Application for leave to appeal to House of Lords – refused. However ‘on public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible . .
Cited – British American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
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 . .
Lists of cited by and citing cases may be incomplete.

Health, Consumer, Administrative

Updated: 30 May 2022; Ref: scu.146654

Re T-T: Admn 22 Oct 2002

Application for a writ of habeas corpus ad subjiciendum and a linked application for appropriate relief by way of judicial review of the decision of the hospital managers not to discharge the claimant, made at a hearing at which the managers had conducted a review of the claimant’s detention under section 3 of the Mental Health Act 1983.

Judges:

Forbes J

Citations:

[2002] EWHC 2803 (Admin)

Links:

Bailii

Statutes:

Mental Health Act 1983 3

Jurisdiction:

England and Wales

Health

Updated: 30 May 2022; Ref: scu.347810

Regina v Drew: HL 8 May 2003

The defendant was mentally ill. He had been convicted of a second serious offence, and now appealed the life sentence imposed. Psychiatrists had recommended a hospital order, but such an order could not now be made by virtue of the 2000 Act save in exceptional circumstances. It was said to be wrong automatically to impose a life sentence on the mentally ill and not criminally culpable, being ‘inhuman or degrading treatment or punishment’ within the unqualified prohibition, and the sections requiring imposition of such sentences where the offender is mentally ill, would be incompatible with article 3.
Held: The advantage of the life sentence is its flexibility. A determinate sentence would eventually result in release with no control. Courts had been reluctant to impose life sentences, and the Act was a response to that. It was not arbitrary, but proportionate and compliant.

Judges:

L Bingham of Cornhill, L Steyn, L Hutton, L Millett, L Rodger of Earlsferry

Citations:

[2003] UKHL 25, Times 09-May-2003, Gazette 03-Jul-2003, [2003] 1 WLR 1213, [2004] 1 Cr App R (S) 8, (2004) 75 BMLR 34, [2003] 2 Cr App R 24, [2003] 4 All ER 557

Links:

House of Lords, Bailii

Statutes:

Powers of Criminal Courts (Sentencing) Act 2000 109, Mental Health Act 1983 37, Crime (Sentences) Act 1977 2, European Convention on Human Rights 3

Jurisdiction:

England and Wales

Citing:

Approved – Regina v Offen; Regina v McGuillard; Regina v McKeown; Regina v Okwuegbunam; Regina v Saunders (Stephen) CACD 15-Nov-2000
For the purposes of the Act, where a defendant faced a compulsory life sentence following two convictions for certain offences, a finding by the judge that the defendant did not pose a serious risk to society, could be an exceptional circumstance . .
Cited – X v United Kingdom ECHR 5-Oct-1972
A complaint by a prisoner that as a mentally disordered person he should have been held in a psychiatric hospital rather than a prison was rejected as inadmissible. . .
Approved – Regina v Birch CACD 1989
Even where there is culpability, a hospital order with a restriction order may well be the appropriate way to deal with a dangerous and disordered person.
Mustill LJ discussed the effect of a restriction order: ‘In marked contrast with the . .
Cited – Regina v H (Special measures) CACD 28-Mar-2003
The defendant had learning difficulties, and sought permission from the court to have a support worker. He appealed an order made by the judge as to the steps to be taken.
Held: The courts should be flexible and ready to assist where necessary . .
Cited – Regina v London South West Region Mental Health Review Tribunal, Ex Parte Moyle QBD 10-Feb-2000
An application for the discharge of a mental patient under section 72, was to be based on the same criteria as would found the original decision to authorise detention under section 3. The criteria would mirror each other save that the burden of . .
Appeal from – Regina v Drew CACD 19-Dec-2001
The appellant, a mentally disordered offender appealed the imposition of an automatic life sentence. He asserted that it was a breach of his human rights.
Held: Although courts had repeatedly encouraged the use of orders under the Mental . .

Cited by:

Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Fort, Regina v CACD 13-Dec-2013
The defendant had been found guilty of manslaughter by virtue of diminished responsibility. He had been 17, and a technically incorrect sentence of life imprisonment had been passed. There had been conflicting diagnoses of his condition between . .
Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights, Health

Updated: 30 May 2022; Ref: scu.181923

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 his impending release from hospital, the respondent ordered him to be returned to prison. He absconded form the hospital in ignorance of his recall.
Held: The order for his return to prison had been made without particular regard to the hospitalization.

Judges:

Kay J

Citations:

Times 13-Nov-2002, Gazette 09-Jan-2003

Statutes:

Mental Health Act 1983 3 50(4), Criminal Justice Act 1991 39(2), Prison Act 1952 49(2)

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

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

Prisons, Health

Updated: 30 May 2022; Ref: scu.178074

London Borough of Ealing and others v Jan: CA 7 Feb 2002

Appeal from findings of breaches of injunctions.

Citations:

[2002] EWCA Civ 329

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – AMEC Capital Projects Ltd v Whitefriars City Estates Ltd CA 28-Oct-2004
Alleged bias and procedural unfairness by an adjudicator appointed to determine a dispute in relation to a construction contract.
Held: The principles of the common law rules of natural justice and procedural fairness were two-fold. A . .
Lists of cited by and citing cases may be incomplete.

Health, Natural Justice

Updated: 30 May 2022; Ref: scu.216809

Conway, Regina (on The Application of) v Secretary of State for Justice: SC 27 Nov 2018

Application for leave to appeal after refusal of order allowing withdrawal of his treatment leading to his death within an hour. He wished to argue as to the difference between letting someone die and taking active steps to bring about their death which had been central to the common law for centuries.
Held: This was primarily a matter for Parliament. Permission refused.

Judges:

Lady Hale, Lord Reed, Lord Kerr

Citations:

[2018] UKSC B1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At Admn – Conway, Regina (on The Application of) v The Secretary of State for Justice Admn 5-Oct-2017
The court was asked as to the issue of provision of assistance to a person with a serious wasting disease who wishes to commit suicide, so as to be able to exercise control over the time of his death as the disease reaches its final stages. . .
Leave to Appeal – Conway v The Secretary of State for Justice CA 18-Jan-2018
Application for leave to appeal from refusal of declaration of incompatibility of section 2(1) of the 1961 Act with the claimant’s Article 8 human rights. The case concerns the issue of the provision of assistance to a person with a terminal . .
At CA – Conway, Regina (on The Application of) v The Secretary of State for Justice and Others CA 27-Jun-2018
Appeal from rejection of claim that section 2(1) of the 1961 infringed the claimant’s human rights. . .
Lists of cited by and citing cases may be incomplete.

Crime, Health

Updated: 29 May 2022; Ref: scu.630738

Actavis Group Ptc And Actavis UK v Boehringer Ingelheim Pharma GmbH and Co. KG: ECJ 12 Mar 2015

ECJ Judgment – Reference for a preliminary ruling – Medicinal products for human use – Regulation (EC) No 469/2009 – Article 3 – Supplementary protection certificate – Conditions for obtaining such a certificate – Medicinal products containing in whole or in part the same active ingredient – Medicinal products placed on the market in succession – Combination of active ingredients – Active ingredient previously marketed in the form of a medicinal product with a single active ingredient – Conditions for obtaining several certificates on the basis of the same patent – Modification of the active ingredients of a basic patent

Judges:

A. O Caoimh, P

Citations:

C-577/13, [2015] EUECJ C-577/13

Links:

Bailii

Statutes:

Regulation (EC) No 469/2009 3

Jurisdiction:

European

Health

Updated: 29 May 2022; Ref: scu.544271

Regina v Tower Hamlets Health Care NHS Trust and Snazell ex parte Von Brandenburg: Admn 26 Jun 2000

Citations:

[2000] EWHC Admin 362

Links:

Bailii

Statutes:

Mental Health Act 1983 2 3

Jurisdiction:

England and Wales

Citing:

Appealed to – Regina (Count Franz Von Brandenburg (aka Hanley) ) v East London and The City Mental Health NHS Trust, Snazell, Approved Social worker CA 21-Feb-2001
The court was asked ‘When a mental health review tribunal has ordered the discharge of a patient, is it lawful to readmit him under section 2 or section 3 of the [Mental Health Act 1983] where it cannot be demonstrated that there has been a relevant . .

Cited by:

Appeal from – Regina (Count Franz Von Brandenburg (aka Hanley) ) v East London and The City Mental Health NHS Trust, Snazell, Approved Social worker CA 21-Feb-2001
The court was asked ‘When a mental health review tribunal has ordered the discharge of a patient, is it lawful to readmit him under section 2 or section 3 of the [Mental Health Act 1983] where it cannot be demonstrated that there has been a relevant . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 29 May 2022; Ref: scu.140177

Regina v Hammersmith Hospitals NHS Trust, ex Parte Reffell: Admn 28 Jun 2000

The applicant had come to England to have heart surgery. He expected to pay, and brought with him sufficient to pay for the operation. Unanticipated complications led to delay, and the depletion of his funds. He applied for the operation to be paid for from NHS funds. The hospital refused, and the court held rightly so. The legislation provided no obligation to provide health services for overseas visitors. Such services were provided on a commercial basis, and the operation would be available to him if he returned home to Nigeria.

Citations:

Gazette 21-Sep-2000, [2000] EWHC Admin 363

Links:

Bailii

Statutes:

National Health Service (Charges to Overseas Visitors)

Health, Benefits

Updated: 29 May 2022; Ref: scu.140178

Regina v Powys County Council, ex parte Jenny Diane Hambidge: Admn 28 Apr 1999

Citations:

[1999] EWHC Admin 371

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 20

Cited by:

Appeal from – Regina v Powys County Council, Ex Parte Hambidge (No 2) CA 16-Mar-2000
Where a local authority raised the care charges for facilities and services provided to disabled people charging different rates according to the benefits received, and where some benefits were received according to the level of disability, that . .
Lists of cited by and citing cases may be incomplete.

Local Government, Health, Discrimination

Updated: 28 May 2022; Ref: scu.139635

Regina v Portsmouth Hospitals NHS Trust ex parte Glass: Admn 22 Apr 1999

Application with regard to continuation or otherwise of life saving treatment for a child.

Citations:

[1999] EWHC Admin 343, [1999] 2 FLR 905

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Portsmouth Hospitals Nhs Trust ex parte Carol Glass Admn 21-Apr-1999
. .

Cited by:

Appeal from – Regina v Portsmouth Hospitals NHS Trust (ex parte Glass) CA 21-Jul-1999
The courts can not intervene between a parent and her child’s doctors to control future medical care of the child. Such decisions must be made as they presented themselves. In such cases the child’s best interests took precedence over strict . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Health, Children

Updated: 28 May 2022; Ref: scu.139607

Regina v Mental Health Review Tribunal; Torfaen County Borough Council and Gwent Health Authority ex parte Hall: Admn 23 Apr 1999

The tribunal had ordered the conditional discharge of the patient, subject to conditions to be satisfied by the local health authority. The authority had failed to make the arrangements which would have satisfied the relevant conditions, and as a result the patient remained in detention in hospital.
Held: A health or social services authority has a duty to provide a plan for the after care of a patient released from hospital if he was ordinarily resident in the area. Conditions could be imposed on release only given that such a plan was realistic. ‘(i) an authority’s duty to provide aftercare services includes a duty to set up the arrangements that will be required on discharge; it is not a duty that arises for the first time at the moment of discharge; (ii) an authority with a duty to provide aftercare arrangements acts unlawfully by failing to seek to make arrangements for the fulfilment of conditions imposed by a mental health review tribunal under section 73(1); (iii) if such an authority is unable to make the necessary arrangements it must try to obtain them from another authority; (iv) if arrangements still cannot be made an impasse should not be allowed to continue, the case must be referred back to a mental health review tribunal through the Secretary of State.’

Judges:

Scott Baker J

Citations:

Times 20-May-1999, [1999] 4 All ER 883, [1999] EWHC Admin 351, [2000] 1 WLR 1323

Links:

Bailii

Statutes:

Mental Health Act 1983 117

Citing:

Applied – Regina v Ealing District Health Authority, ex parte Fox 1993
A patient’s conditional discharge had been ordered by a tribunal. One of the conditions imposed by the tribunal was the appointment by the health authority of a responsible medical officer to provide psychiatric supervision of the patient in the . .

Cited by:

Appeal from – Regina v Mental Health Review Tribunal; Torfaen County Borough Council and Gwent Health Authority (ex parte Russell Hall) CA 30-Jul-1999
A patient having been convicted of manslaughter eventually applied for release. The authorities were concerned that he might have a spontaneous recurrence of his condition, but delayed preparation of a plan for his release. The Tribunal refused to . .
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 (on the application of K) v Camden and Islington Health Authority CA 21-Feb-2001
The duty of a local authority to seek to provide resources to care for a mental patient after release into the community, is not absolute, and is subject to the limitations of the availability of a sufficient budget. A continued detention in . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 28 May 2022; Ref: scu.139615

Mrs U v Centre for Reproductive Medicine: CA 2002

The 1990 Act lays great emphasis upon consent. Scientific techniques developed since the first IVF baby open up the possibility of creating human life in quite new ways bringing huge practical and ethical difficulties. These have to be balanced against the strength and depth of the feelings of people who desperately long for the children which only these techniques can give them, as well as the natural desire of clinicians and scientists to use their skills to fulfil those wishes. Parliament has devised a legislative scheme and a statutory authority for regulating assisted reproduction in a way which tries to strike a fair balance between the various interests and concerns. Centres, the HFEA and the courts have to respect that scheme, however great their sympathy for the plight of particular individuals caught up in it.

Judges:

Hale LJ

Citations:

[2002] EWCA Civ 565

Statutes:

Human Fertilisation and Embryology Act 1990

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 by:

Cited – AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B QBD 26-Feb-2003
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents . .
Lists of cited by and citing cases may be incomplete.

Health, Children

Updated: 28 May 2022; Ref: scu.182938

Regina v Central and North-West London Mental Health NHS Trust: QBD 9 Dec 2002

The patient sought his discharge. A panel of three sat, but only two members voted for his release.
Held: The Act allowed a panel with a minimum quorum of three, but also required a minimum of three to vote in favour. The mere majority was insufficient. The Grindley case was not enough to allow a majority vote to be sufficient in the face of the clear words of the statute.

Judges:

Forbes J

Citations:

Times 13-Dec-2002

Statutes:

Mental Health Act 1983 23(4)

Jurisdiction:

England and Wales

Citing:

Cited – Grindley v Barker 1798
Where a number of persons are entrusted with powers not of mere private confidence, but in some respect of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 28 May 2022; Ref: scu.178432

Regina v Secretary of State for Home Office ex parte Gilkes: Admn 21 Jan 1999

The prisoner challenged a decision to have her transferred to a mental hospital under scetion 47.
Held: It had not been reasonable for the Secretary of State to rely on one of the two medical reports she relied on. However since if the Secretary of State had made further inquiries at the time of the decision to transfer, the decision would have been the same, that he would exercise his discretion against granting relief.

Judges:

Dyson J

Citations:

[1999] EWHC Admin 47, [1999] 1 MHLR 6

Links:

Bailii

Statutes:

Mental Health Act 1983 47

Cited by:

Cited – TF, Regina (on the Application of) v Secretary of State for Justice CA 18-Dec-2008
The claimant had been near to completing a sentence for serious violence. He now challenged the way in which, as his sentenced approached completion, the defendant had sought an order transferring him to a secure mental hospital. He was served with . .
Lists of cited by and citing cases may be incomplete.

Health, Criminal Sentencing

Updated: 28 May 2022; Ref: scu.139311

Regina v Gloucestershire County Council ex parte Radar: Admn 1998

It is not sufficient for an authority to discharge its duty under the Act by writing letters to those affected or potentially affected and offering them reassessment.
Carnwath J said: ‘In some areas of the law that might be an adequate response, where those affected can be assumed to be capable of looking after their own interests, and where silence in response to an offer can be treated as acceptance or acquiescence. However, that approach is not valid in the present context. The obligation to make an assessment for community care services does not depend on a request, but on the appearance of ‘need.”

Judges:

Carnwath J

Citations:

[1998] 1 CCLR 477

Statutes:

Chronically Sick and Disabled Persons Act 1970

Jurisdiction:

England and Wales

Cited by:

Cited – Savva, Regina (on The Application of) v Royal Borough of Kensington and Chelsea Admn 11-Mar-2010
The claimant challenged the defendant’s policies on caring for elderly people within the community saying that it provided insufficient funds, and the procedures for review were inadequate and infringed her human rights. . .
Lists of cited by and citing cases may be incomplete.

Local Government, Health

Updated: 28 May 2022; Ref: scu.402613

Regina v Mental Health Review Tribunal for South Thames Region ex parte Anthony David Smith: Admn 4 Aug 1998

When assessing the release of a detained patient the tribunal must look at the ‘nature or degree’ of the illness disjunctively and not conjunctively. A person subject to a serious illness but without current symptoms might still be detained.

Citations:

Times 09-Dec-1998, [1998] EWHC Admin 832

Links:

Bailii

Statutes:

Mental Health Act 1983 72(1)(b)(I)

Health

Updated: 27 May 2022; Ref: scu.138953

Regina v Powys County Council ex parte Jenny Diane Hambidge: Admn 7 Oct 1997

A Local Authority has power to charge for services it provides under Chronically Sick and Disabled Persons Act and under the Health and Social Services etc Act.

Citations:

Times 05-Nov-1997, [1997] EWHC Admin 842

Links:

Bailii

Statutes:

Chronically Sick and Disabled Persons Act 1970, Health and Social Services and Social Security Adjudications Act 1983 17(2)

Health, Local Government

Updated: 26 May 2022; Ref: scu.137787

Wiltshire Council, Regina (on The Application of) v Hertfordshire County Council: CA 22 May 2014

Dispute between two local authorities over who has responsibility under section 117 of the Mental Health Act 1983 (‘the Act’) for the aftercare of a person, originally made the subject of a hospital order with restrictions by an order of the Crown Court, who has been conditionally discharged for the second time from detention at a hospital.

Judges:

Moses, Kitchin LJJ, Bean J

Citations:

[2014] EWCA Civ 712, [2014] WLR(D) 229, [2014] PTSR 1066

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Health, Local Government

Updated: 26 May 2022; Ref: scu.525650

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 into account in the discharge of their functions. They would be susceptible to challenge only on Wednesbury principles if they failed to consider the circular, or if they misconstrued or misapplied it whether deliberately or negligently . . . If the circular gave directions, then the health authorities would have an absolute duty to comply. I agree that it is important that the court should be slow to construe a document as a direction in the absence of clear words that that is what it is intended to be. The language of the circular is very far from clearly demonstrating an intention to give directions. It is, of course, important to examine substance rather than form. The substance here is to be found in the language of the circular.’

Judges:

Dyson J

Citations:

[1997] EWHC Admin 675, [1997] 38 BMLR 76, (1998) 1 CCLR 150, (1998) 10 Admin LR 27

Links:

Bailii

Citing:

Cited – EC Gransden and Co Ltd and Falkbridge Ltd v Secretary of State for the Environment QBD 1985
If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the . .

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 – 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 – 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 . .
Cited – Milner, Regina (on The Application of) v South Central Strategic Health Authority Admn 11-Feb-2011
The claimant sought to challenge the way the defendant had reached its decision to add flouride to the water supply, in having failed to comply with the requirements for consultation.
Held: The claim failed. The Regulations as enacted differed . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 26 May 2022; Ref: scu.137620

Regina v East Riding of Yorkshire Council and Kingston Upon Hull City ex parte Michael Bogdal: Admn 24 Jun 1997

The applicant challenged refusal to register his nursing home. He argued that a lease of the premises and business to another was in practice a contract of agency.
Held: The applicant having ceased himself to have any direct financial interest in the business, he had no standing to seek judicial review. The authority was free to cancel a registration of its own motion. Leave to apply for judicial review was refused.

Citations:

[1997] EWHC Admin 587

Links:

Bailii

Statutes:

Registered Homes Act 1984 3

Health, Licensing

Updated: 26 May 2022; Ref: scu.137532

Regina v Secretary of State for the Home Department ex parte Harry: QBD 15 May 1998

Home Secretary had the duty to make decision on release of mental patient and had no duty to follow recommendation of the tribunal but must act fairly and disclose what was happening.

Citations:

Times 15-May-1998

Statutes:

Mental Health Review Tribunal Rules 1983 (1983 No 942)

Jurisdiction:

England and Wales

Health

Updated: 26 May 2022; Ref: scu.87861

Y v A Healthcare NHS Trust and Others: CoP 2 Aug 2018

Application for procedure to collect the applicant’s husband’s sperm. He lacked capacity to consent, and was in a critical condition. The applicant wanted to use the sperm so that she could bear his children after his death.

Judges:

Knowles J

Citations:

[2018] EWCOP 18

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health

Updated: 25 May 2022; Ref: scu.625401

Regina v Human Fertilisation and Embryology Authority ex parte DB: Admn 17 Oct 1996

Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been considered in Parliament, and allowing for the limitations on the powers of courts exercising a judicial review, the decision stood. The decision was left by Parliament within the discretion and judgement of the respondent. That is where it stayed.

Judges:

Sir Stephen Brown

Citations:

Gazette 30-Oct-1996, Times 18-Oct-1996, [1996] EWHC Admin 122

Links:

Bailii

Statutes:

Human Fertilisation and Embryology Act 1990 Sch 3

Jurisdiction:

England and Wales

Citing:

Appealed to – Regina v Human Fertilisation and Embryology Authority ex parte DB CA 6-Feb-1997
At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
Cited – Re B (Parentage) FD 1996
A mother applied for financial provision for her twin children under 1989 Act Sch 1. The father asked whether he was their parent within the Schedule. They had been born by artificial insemination. He accepted that he was the donor of the sperm and . .
Cited – The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others ECJ 4-Oct-1991
Europa A national court or tribunal is not empowered to bring a matter before the Court by way of a reference for a preliminary ruling under Article 177 of the Treaty unless a dispute is pending before it in the . .
Cited – Her Majesty’s Customs and Excise v Gerhart Schindler and Jorg Schindler ECJ 24-Mar-1994
Europa The importation of lottery advertisements and tickets into a Member State with a view to the participation by residents of that State in a lottery conducted in another Member State relates to a ‘service’ . .
Cited – Regina v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department ECJ 7-Jul-1992
ECJ The provisions of the Treaty relating to the free movement of persons are intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community and preclude . .
Cited – Barnard v Gorman HL 1941
The court considered awarding costs in a judicial review case: ‘There will be no order as to costs in this House, as the Crown has very properly agreed (since this is a case of general importance, and the respondent is a poor man) to pay the costs . .
Cited – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
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 – 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 – Chief Constable of the North Wales Police v Evans HL 1982
The Court found the probationer police constable to have been unlawfully induced to resign, but the court could not order his reinstatement. A power must be exercised by the precise person or body stated in the statute. Though courts may review the . .

Cited by:

Appeal from – Regina v Human Fertilisation and Embryology Authority ex parte DB CA 6-Feb-1997
At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
Cited – X v Y (Employment: Sex Offender) CA 28-May-2004
The claimant had been dismissed after it was discovered he had been cautioned for a public homosexual act. He appealed dismissal of his claim saying that the standard of fairness applied was inappropriate with regard to the Human Rights Act, and . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 25 May 2022; Ref: scu.136670

Re X (A Child): FD 2 Oct 2015

Application by an NHS Trust responsible for a paediatric hospital for a Declaration that it would not be unlawful to withdraw medical support devices which are effectively keeping X alive. Without such devices in place in respect of his heart and lungs, X will die.

Judges:

Bodey J

Citations:

[2015] EWHC 2778 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 25 May 2022; Ref: scu.553920