The court considered so-called Deprivation of Liberty Safeguards for several test cases of older people suffering some form of dementia. Baker J [2016] EWCOP 49 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 27 January 2022; Ref: scu.572428
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application. Held: Special advocates were not needed in this case; ‘there is nothing that a special advocate could do … Continue reading Chief Constable and Another v YK and Others: FD 6 Oct 2010
A court could only grant an order permitting treatment despite the absence of an adult patient’s consent by virtue of the doctrine of necessity.Munby J said: ‘in our multi-cultural and pluralistic society the family takes many forms . . The fact is that many adults and children, whether through choice or circumstance, live in families … Continue reading In re S (Adult patient) (Inherent jurisdiction: Family life); Sheffield City Council v S: FD 2002
Peter Jackson J [2016] EWCOP 43 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 24 January 2022; Ref: scu.570861
Farquar HHJ [2016] EWCOP B2 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 24 January 2022; Ref: scu.570859
Eldergill DJ [2016] EWCOP 40 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 24 January 2022; Ref: scu.570858
Mark Rogers HHJ [2016] EWCOP 41 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 24 January 2022; Ref: scu.570857
These proceedings raise, for the first time in the courts of the United Kingdom, the question how the concepts of sufficiency and infringement are to be applied to a patent relating to a specified medical use of a known pharmaceutical compound. Four issues arose: (i) the construction of the claims (in particular, Claim 3 as … Continue reading Warner-Lambert Company Llc v Generics (UK) Ltd (T/A Mylan) and Another: SC 14 Nov 2018
District Judge Taylor [2020] EWCOP 44 Bailii Mental Capacity Act 2005 21A England and Wales Agency Updated: 22 January 2022; Ref: scu.655041
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of … Continue reading Ashingdane v The United Kingdom: ECHR 28 May 1985
Appeal from declaration that DP lacked capacity Mr Justice Hayden [2020] EWCOP 45 Bailii Mental Capacity Act 2005 48 England and Wales Agency, Health Updated: 18 January 2022; Ref: scu.655040
Application by the Public Guardian to revoke lasting powers of attorney granted by P [2019] EWCOP 65 Bailii Mental Capacity Act 2005 England and Wales Health, Agency Updated: 18 January 2022; Ref: scu.655029
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 standard was flexible, and varied according to the seriousness of the allegation. The only misdirection … Continue reading AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others: CA 21 Dec 2005
Appointment of Rule 3A representative Charles J [2016] EWCOP 16, [2016] 4 WLR 64 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 14 January 2022; Ref: scu.562611
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be homosexual. A declaration was sought as to the legality of the proposed decision. Held: A … Continue reading Johns and Another, Regina (on The Application of) v Derby City Council and Another: Admn 28 Feb 2011
An injunction effective against the world, was granted to restrain any act to identify the claimant in the media, including the Internet. She had been convicted of murder when a child, and had since had a child herself. An order had been granted protecting her and her child until the child was 18. She now … Continue reading X, A Woman Formerly Known As Mary Bell v Stephen O’Brien, News Group Newspapers Ltd MGN Ltd: QBD 21 May 2003
Application by two attorneys acting jointly under two separate Enduring Powers of Attorney for the retrospective approval of monthly payments of andpound;150 each that they have made to themselves and to their sister from the donors’ funds. Lush SJ [2015] EWCOP 84 Bailii Mental Capacity Act 2005 Agency Updated: 09 January 2022; Ref: scu.558199
Application made under section 15 of the 2005 Act for a declaration determining whether it is in the best interests of Mrs. N to receive life sustaining treatment by means of Clinically Assisted Nutrition and Hydration currently provided through a percutaneous endoscopic gastrostomy (PEG) tube. M, her daughter, strongly believes that the continuation of this … Continue reading Re N: CoP 19 Nov 2015
Lush SJ [2015] EWCOP 63 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 04 January 2022; Ref: scu.553277
Applications for welfare orders under section 16(2)(a) authorising the deprivation of liberty that, it is common ground, is being, or will be, created by the implementation of the regime of care, supervision, control and support (the care package) upon which the welfare orders are based. Charles J [2015] EWCOP 59 Bailii Mental Capacity Act 2005 … Continue reading Re NRA and Others: COP 25 Sep 2015
Challenge to the standard authorisation. Bellamy DJ [2015] EWCOP 56 Bailii Mental Capacity Act 2005 21A Health, Agency Updated: 03 January 2022; Ref: scu.551769
‘two provisions in the Mental Capacity Act 2005 (‘MCA’) that seem to contradict each other. Section 16(4)(b) envisages that a deputyship appointment will be of limited duration, whereas section 19(5) facilitates an appointment that could last for decades’ Lush SJ [2015] EWCOP 52 Bailii Mental Capacity Act 2005 16(4)(b) 19(5) Health, Agency Updated: 03 January … Continue reading Re H: CoP 5 Aug 2015
Challenge to deprivation of liberty order. Bellamy J [2015] EWCOP 53 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 03 January 2022; Ref: scu.551317
Mental Health : AllThe local authority had sought an order under the 2005 Act seeking a personal welfare order on the basis that it would be in KC’s best interests for him to move to a proposed placement (the Placement) on the terms of a care plan for his care, supervision and management at that … Continue reading Secretary of State for Justice v KC and C Partnership NHS Foundation Trust: UTAA 2 Jul 2015
Application for reconsideration of an order made on the papers by an authorised court officer Lush SJ [2015] EWCOP 43 Bailii Mental Capacity Act 2005 51(2)(d) Health Updated: 01 January 2022; Ref: scu.549561
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose conditions in a CTO which amount to the deprivation of his liberty within the meaning of article … Continue reading Welsh Ministers v PJ: SC 17 Dec 2018
Closed Material before Supreme Court Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it was possible for the Supreme Court to … Continue reading Bank Mellat v Her Majesty’s Treasury (No 1): SC 19 Jun 2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental Health Review Tribunal ‘MHRT’ under section 67(1) of the Mental … Continue reading Modaresi, Regina (on The Application of) v Secretary of State for Health: SC 24 Jul 2013
Hilder DJ [2015] EWCOP 36 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 30 December 2021; Ref: scu.547520
ECHR Article 8 Expulsion Proposed removal of a mentally ill person who had lived and worked in the host country for more than twenty years: expulsion would not constitute a violation Facts – The applicant moved from Pakistan to Germany in 1991 with her husband. Three years later her son was born. She and her … Continue reading Khan v Germany: ECHR 23 Apr 2015
Application by the Public Guardian for an order under section 16(8) of the Mental Capacity Act 2005 revoking the appointment of a deputy because he has behaved in a way that contravenes the authority conferred on him by the court or is not in the best interests of the person for whom he acts as … Continue reading re HC: CoP 23 Apr 2015
ECJ Judgment – Reference for a preliminary ruling – Internal market in natural gas -Directive 2003/55/EC – Article 25 – Directive 2009/73/EC – Articles 41 and 54 – Temporal application -Regulation (EC) No 1775/2005 – Article 5 – Capacity allocation mechanisms and congestion management procedures – Decision of a regulatory authority – Right to bring … Continue reading E.On Foldgaz Trade Zrt v Magyar Energetikai es Kozmu-szabalyozasi Hivatal: ECJ 19 Mar 2015
The case addresses the question of the extent of the duty on a local authority to ensure that a person who lacks capacity is able to challenge a deprivation of their liberty, and in particular the choice of an independent mental capacity advocate. Baker J [2015] EWCOP 5 Bailii Mental Capacity Act 2005, Mental Health … Continue reading AJ (Deprivation of Liberty Safeguards): CoP 10 Feb 2015
DD, a 36 year old woman with Autistic Spectrum Disorder with additional low IQ, a probable history of abuse, and complex obstetric history. She was in a long term relationship with a man with lower IQ and also some autism. She had had 5 children, and the court had considered already a further sixth pregnancy. … Continue reading The Mental Health Trust and Others v DD and Another: CoP 4 Feb 2015
The local authority sought orders as to the care of L an adult with learning difficulties after a finding that he did not have capacity in respect of decisions as to where he was to live, Theis J [2013] EWHC 3230 (Fam) Bailii Mental Capacity Act 2005 England and Wales Health Updated: 24 December 2021; … Continue reading LBX v K and Others: FD 19 Jun 2013
Power of FTT to deprive patient of liberty Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order. Held: The orders made by the UT were set … Continue reading The Secretary of State for Justice v MM: CA 29 Mar 2017
Application as to QD, a man in his 60s who suffers from Dementia in Alzheimer’s disease, connected with an atypical form of Parkinson’s disease. [2020] EWCOP 14 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 23 December 2021; Ref: scu.650606
Appeal from a decision that care workers would not commit a criminal offence under section 39 of the 2003 Act were they to make the practical arrangements for a 27 year old man to visit a sex worker in circumstances where he has capacity (within the meaning of the 2005 Act) to consent to sexual … Continue reading The Secretary of State for Justice v A Local Authority and Others: CA 22 Oct 2021
Mr Justice Ryder [2011] EWHC 2853 (Fam) Bailii Mental Capacity Act 2005 16 18(k) England and Wales Health Updated: 21 December 2021; Ref: scu.450348
A 48 year old woman, suffering Huntington’s Disease appealed against a decision in the Court of Protection, raising two issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the … Continue reading GW v A Local Authority and Another: CoP 31 Jul 2014
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that she understood it, and that it represented her wishes. He then witnessed the … Continue reading Hoff and others v Atherton: CA 19 Nov 2004
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the testator’s testamentary capacity. Held: The will failed. When … Continue reading Key and Another v Key and Others: ChD 5 Mar 2010
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 time to accept the offer. Held: There is no definition … Continue reading Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1): CA 19 Dec 2002
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence. Held: The 2005 Act had restated the law on capacity in Banks, but had shifted the burden of proof. However in this case the common … Continue reading Scammell and Another v Farmer: ChD 22 May 2008
The parties contested the validity of a will on the basis of incapacity. Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the time when the testator had made the amendments to his instructions … Continue reading Carr and others v Beaven and others: ChD 29 Oct 2008
The statutory provisions of the 2007 Act for review of standard authorisations were matters that the Court of Protection should take into account in determining whether it should make an order authorising the deprivation of P’s liberty, and if so the extent and period of such an authorisation having regard to the authorities relating to … Continue reading GJ v The Foundation Trust and Another: FD 20 Nov 2009
A, an adult and severely disabled, still had remarkable gifts. The newspapers wished to attend and report on proceedings before the Court of Protection. Held: Proceedings in the Court fell within the range of recognised exception for open justice. It was for an applicant to demonstrate good reason why the article ten rights should be … Continue reading Independent News and Media Ltd and Others v A: FD 12 Nov 2009
Roderic Wood J [2010] EWHC 1544 (Fam) Bailii Mental Capacity Act 2005 England and Wales Health Updated: 06 December 2021; Ref: scu.510876
Munby J discussed the court’s inherent powers to make orders to protect the welfare of a vulnerable adult: ‘It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests . . The particular form of order will, naturally, depend upon the particular circumstances of the case.’ As to the … Continue reading A Local Authority v MA and others; Re SA (Vulnerable Adult with Capacity: Marriage): FD 15 Dec 2005
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in the first place. Held: The new landlord was not liable for the … Continue reading Edlington Properties Limited v J H Fenner and Co Limited: CA 22 Mar 2006
Challenge to media restriction in personal welfare proceedings in the Court of Protection. Sir James Munby P [2014] EWCOP 1361 Bailii Mental Capacity Act 2005 England and Wales Media Updated: 04 December 2021; Ref: scu.524686
Appeal by a 37 year old man, with mental and physical disabilities, against an order of the Court of Protection authorising his detention at a care home. Arden, Jackson, Fulford LJJ [2014] EWCA Civ 561 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 03 December 2021; Ref: scu.525120
Baker J considered the common law doctrine of necessity as it applied to the medical treatment of adults without mental capacity and the 2005 Act. Held: As to section 5: ‘These provisions do not amount to a general authority to act on behalf of P. Rather, they merely provide a defence in the event that … Continue reading G v E (Deputyship and Litigation Friend): CoP 11 Oct 2010
ES’s son and daughter objected to Kent County Council’s application for the appointment of a panel deputy to manage her property and financial affairs. Lush SJ [2014] EWHC B6, [2014] EWCOP B6 Bailii, Bailii Mental Capacity Act 2005 England and Wales Agency, Health Updated: 03 December 2021; Ref: scu.524671
Application by a local authority (‘the authority’) in the Court of Protection in respect of the capacity of the Respondent to litigate and to make decisions in relation to her life. Keehan J [2013] EWCOP 3485 Bailii Mental Capacity Act 2005 Sch A1 Health Updated: 03 December 2021; Ref: scu.524711
Application for execution of a statutory will to be authorised by the court pursuant to section 18(1)(i) of the Mental Capacity Act 2005. District Judge E Batten [2013] EWCOP B39 Bailii Mental Capacity Act 2005 18(1)(I) England and Wales Wills and Probate Updated: 03 December 2021; Ref: scu.524707
Baker J [2013] EWCOP 2322 Bailii Mental Capacity Act 2005 England and Wales Health Updated: 03 December 2021; Ref: scu.524703
The court had already decided that the subject of the case had capacity for purposes of consenting to and engaging in sexual relations. The Court was now asked as to his capacity (1) to make decisions as to his contact with other people, and (2) to make decisions as to his care needs. Baker J … Continue reading A Local Authority v TZ (No 2): CoP 1 Apr 2014
Mainwaring-Taylor DJ [2013] EWHC B34 (CoP) Bailii Mental Capacity Act 2005 Health Updated: 01 December 2021; Ref: scu.522623
Russell J [2014] EWHC 485 (COP) Bailii Mental Capacity Act 2005 Health Updated: 01 December 2021; Ref: scu.522619
Eldergill DJ [2014] EWHC B12 (COP) Bailii Mental Capacity Act 2005 Health Updated: 01 December 2021; Ref: scu.522616
LRA Family Law Act 1996 – home rights notice – meaning and effect of ‘intention’ in statute – Applicant’s evidence – property never occupied as a matrimonial home – whether husband ever had entitlement to occupy by virtue of a beneficial estate or interest or application – application opposed by Applicant’s husband’s trustee in bankruptcy … Continue reading Ellis-Carr v Levy (Home Rights : Requirements To Establish Interest): LRA 19 Nov 2013
The court considered the capacity of JB to consent to medical treatment. Peter Jackson J [2014] EWHC 342 (COP) Bailii Mental Capacity Act 2005 England and Wales Health Updated: 30 November 2021; Ref: scu.521517
Application by the Public Guardian to revoke and direct the cancellation of the registration of a Lasting Power of Attorney. Lush SJ [2014] EWHC B4 (COP) Bailii Mental Capacity Act 2005 22(4)(b) Agency, Health Updated: 29 November 2021; Ref: scu.521132
The defendant executor appealed from summary judgment in favour of the claimant in respect of outstanding care home fees. Andrews DBE J [2014] EWHC 77 (QB), [2014] PTSR 888, [2014] WLR(D) 42 Bailii, WLRD Mental Capacity Act 2005, National Assistance Act 1948, National Health Service and Community Care Act 1990 England and Wales Contract, Health, … Continue reading Aster Healthcare Ltd v Shafi (Estate of): QBD 24 Jan 2014
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. Held: Article 5(1)(a) is concerned with the question whether the detention is permissible. Its object and … Continue reading Winterwerp v The Netherlands: ECHR 24 Oct 1979
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a conditional release. He said that that was discriminatory. Held: (Lord Hughes dissenting) The appeal failed. The … Continue reading Secretary of State for Justice v MM: SC 28 Nov 2018
The claimant accountants had represented the defendant in a dispute with former employees. They sought payment of their costs, but the claim was stayed until the defendant had the opportunity to to seek representation by a MacKenzie friend after the taxing master became concerned for her health and as to her ability to conduct proceedings. … Continue reading Baker Tilly (A Firm) v Makar: QBD 27 Mar 2013
Application for permission to appeal against a decision of dismissing the Appellant’s application under section 21A 2005 Act challenging the lawfulness of a Standard Authorisation made under Schedule A1 of the MCA authorizing the deprivation of his son’s, the first respondent’s liberty. Moses, Black, Gloster LJJ [2013] EWCA Civ 1661, [2014] 1 WLR 3773 Bailii … Continue reading TAQ v AA: CA 19 Dec 2013
The court was asked which of two the local authorities should pay for the continuing care of a man now nearing 50 years of age who suffered severe brain injury in a road traffic accident in 2005. He lacked mental capacity and required 24 hours’ care. The issue of funding in turn depended upon the … Continue reading Neath and Port Talbot Council v Secretary of State for Health: Admn 31 Jul 2013
The LA sought a declaration as to JB’s lack of capacity to consent to sexual relations. Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens, Lady Rose [2021] UKSC 52 Bailii, Bailii Press Summary, Bailii Issues and Facts Mental Capacity Act 2005 England and Wales Citing: Appeal from – A Local Authority v JB CA 11-Jun-2020 … Continue reading A Local Authority v JB: SC 24 Nov 2021
The trust sought a declaration as regards its treatment of Dr A, a resident patient who had begun a hunger strike. The trust sought a declaration as to his capacity and possible compulsory feeding. Baker J [2013] EWHC 2442 (COP) Bailii Mental Capacity Act 2005 Health, Agency Updated: 25 November 2021; Ref: scu.517571
The patient was a lady aged 59, suffering multiple sclerosis. She had lost mental capacity to make her own decisions many years before. She appealed against a refusal of an order allowing the doctors to bring her life to an end. Held: The appeal failed: ‘The judge came to the conclusion was that in KH’s … Continue reading W Healthcare NHS Trust v KH: CA 17 Sep 2004
The LA sought a declaration as to the capacity of JB to consent to sexual relations. Sir Andrew McFarlane P, Singh, Baker LJJ [2020] EWCA Civ 735, [2020] WLR(D) 336, [2020] 3 WLR 1014, (2020) 23 CCL Rep 449, [2020] COPLR 550, [2021] Fam 37, [2021] 1 All ER 1103, (2020) 175 BMLR 52, [2021] … Continue reading A Local Authority v JB: CA 11 Jun 2020
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley). Held: ‘The rule that this court must always follow a decision of the House of Lords and, … Continue reading James, Regina v; Regina v Karimi: CACD 25 Jan 2006
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless (including in the case of the charterer its ‘Affiliates’) in relation … Continue reading Farstad Supply As v Enviroco Ltd: SC 6 Apr 2011
The prosecutor appealed a grant of a stay of a prosecution of the 13 year old defendant as an abuse of process. Reports had indicated that he was unfit to plead. The prosecution contended that, if the court thought P ought not to face trial by reason of his disability, it should proceed to decide … Continue reading Crown Prosecution Service v P; Director of Public Prosecutions v P: Admn 27 Apr 2007
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings. Held: The documents were disclosed under an obligation to use them for the instant case only. That rule was imposed because ‘Discovery constitutes a very serious invasion of the privacy and … Continue reading Home Office v Hariette Harman: HL 11 Feb 1982
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations. Held: The prisoners’ appeals were allowed. Lord Bingham stated: ‘While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are … Continue reading Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals): HL 27 Jan 2005
Right to Life Did Not include Right to Death The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not the antithesis of the right … Continue reading Pretty v The United Kingdom: ECHR 29 Apr 2002
The protected person’s deputy sought authority for making a statutory will for her. An earlier Enduring Power had been found to be a forgery, and a later will was also doubted. The deputy had been appointed. A statutory will had been refused because the master said one was appropriate only where no will existed, and … Continue reading In Re D (Statutory Will); VAC v JAD and Others: ChD 16 Aug 2010
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a certain specification on the plot so as … Continue reading Radford v De Froberville: 2 Jan 1977
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 disabillities including functioning at the equivalent age of 13. The man had … Continue reading Sheffield City Council v E; Re E (An Alleged Patient): FD 2 Dec 2004
Immigration detention proper after prison release The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 Act. The court had found that the detention had … Continue reading SK (Zimbabwe) v Secretary of State for the Home Department: CA 6 Nov 2008
hsen_paCoP201506 The HSE sought orders under s.63 of and Schedule 3 to the 2005 Act recognising and enforcing orders by the Irish High Court for the detention of three young persons (‘PA’, ‘PB’, and ‘PC’) at a special unit known in Northampton. Held: On an application to for confirmation of a compulsory psychiatric placement under … Continue reading The Health Service Executive of Ireland v PA and Others: CoP 3 Jun 2015
(Court of Protection) The court was asked whether, if P could be found to lack mental capacity where he should live, where there was an essential conflict between representatives of the State who owe statutory duties to P on the one hand, and the view of his carer of 18-plus years standing on the other, … Continue reading A Primary Care Trust v P and Others: Misc 21 Dec 2009
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; whether time ran from the date of the first breach, whether want of proportionality is … Continue reading Somerville v Scottish Ministers: HL 24 Oct 2007
Order for Journalist to Disclose Sources The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have originated in the hospital. Held: An order requiring disclosure … Continue reading Ashworth Security Hospital v MGN Limited: HL 27 Jun 2002
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by other companies should proceed through the Commissioners who could implement European law directly. The taxpayers … Continue reading Autologic Holdings Plc and others v Commissioners of Inland Revenue: HL 28 Jul 2005
Fairness on Division of Family Capital The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital. Held: The 1973 Act gives only limited guidance on … Continue reading Miller v Miller; McFarlane v McFarlane: HL 24 May 2006
Jurisdiction of the Court of Protection PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An interim guardianship order had been made … Continue reading JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction): CoP 13 Dec 2013
re_mjtCoP0414 The court had made an order transferring responsibility for MRJ’s affairs from the appointed attorney to the local authority. The order had been made on the papers, and the court now heard an application for it to be reconsidered. Held: The orders made were confirmed. The court recognised that the interference in a person’s … Continue reading Re MRJ JT and KT (Reconsideration of Order): CoP 10 Apr 2014
Lack of Capacity – Effect on Proceedings The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the proceedings for her)? Second, what … Continue reading Dunhill v Burgin: SC 12 Mar 2014
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the proceedings held in private. Held: Their appeal against the order allowing access failed. The normal rule … Continue reading A v Independent News and Media Ltd and Others: CA 31 Mar 2010
masmCoP201501 The court considered the legal status of declaratory orders in the Court of Protection and the consequences, if any, for deliberate defiance of them. Hayden J [2015] EWCOP 3 Bailii Mental Capacity Act 2005 Contempt of Court Updated: 01 November 2021; Ref: scu.541977
(Hong Kong) On a trial for murder the defendant relied on the defences of diminished responsibility and provocation. Medical evidence showed the defendant suffered from brain damage and was prone to respond to minor provocation by losing his self-control and acting explosively. The trial judge directed the jury that this medical evidence was not relevant … Continue reading Luc Thiet Thuan v The Queen: PC 2 Apr 1996
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory authority, could order a closed material procedure for part or all of the trial of … Continue reading Al Rawi and Others v The Security Service and Others: CA 4 May 2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice. Held: The deeds were set aside as void. The Rule in Hastings-Bass derives from trust law, not the law of mistake. The principle does not exist to relieve advisors from … Continue reading Futter and Another v Futter and Others: ChD 11 Mar 2010
The applicant, who was subject to a control order, complained that the respondent had failed as required to keep under review the possibility of a prosecution, and had renewed the order without satisfying that requirement. Held: The appeal failed. Though the respondent had failed as described, that did not make the renewal of the control … Continue reading Secretary of State for the Home Department v E and Another: HL 31 Oct 2007
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage. Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary relief application on a divorce, the court should include consideration of why any … Continue reading White v White: HL 26 Oct 2000
