The claimant prisoner challenged an order for his remission from a secure mental hospital to prison
Mr Rec Fordham QC
[2013] EWHC 3613 (Admin)
England and Wales
Updated: 09 December 2022; Ref: scu.519980
For civil patients, it matters a great deal whether the classification of their condition is ‘severe subnormality’ or just ‘subnormality’ or whether it is ‘mental illness’ or ‘psychopathic disorder’. Lawton LJ discussed the construction of the phrase ‘mental illness’: ‘The answer in my judgment is to be found in the advice which Lord Reid gave in Cozens v. Brutus [1973] AC 854 at 861, namely that ordinary words in the English language should be construed in the way that ordinary sensible people would construe them. That being the right test, then I ask myself what would the ordinary sensible person have said about the patient’s condition in this case . . In my judgment such a person would have said ‘well the fellow is obviously mentally ill’. It is that application of the sensible person’s assessment of the condition, plus the medical indication, which in my judgment brought the case within the classification of mental illness and justified the finding of the County Court Judge.’
Lawton LJ
[1974] QB 711
England and Wales
Approved – Brutus v Cozens HL 19-Jul-1972
The House was asked whether the conduct of the defendant at a tennis match at Wimbledon amounted to using ‘insulting words or behaviour’ whereby a breach of the peace was likely to be occasioned contrary to section 5. He went onto court 2, blew a . .
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 – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.224203
Managers considering an application by relatives for discharge of patient were not bound by the doctor’s report, but could go outside the criteria set out in the section to see whether it was safe to release the patient.
Times 18-May-1998
England and Wales
Updated: 18 November 2022; Ref: scu.87633
A patient discharged conditionally under one part of the Act can still be detained properly under another. They constitute separate and distinct codes.
Times 27-Aug-1997
England and Wales
Updated: 09 November 2022; Ref: scu.87451
A strict compliance with the statutory rules before a mental patient could be detained did not require an inflexible order of events.
Times 14-Jul-1997, Gazette 09-Jul-1997
England and Wales
Updated: 06 November 2022; Ref: scu.82290
Local Authority is not able to take account of its resources in deciding whether to meet particular kinds of need.
Gazette 12-Sep-1996
Chronically Sick and Disabled Persons Act 1970 2(1)
England and Wales
Updated: 31 October 2022; Ref: scu.86698
The feeding by tube of a mental patient who was unable and unwilling to consent can remain treatment, and within the decision of the doctors. In the context of whether the force-feeding an anorexic was authorised by section 63, the Court of Appeal held that treatment falling within the definition in section 145(1) was ‘treatment for the mental disorder from which he is suffering’ even if addressing its symptoms or ancillary to trying to address the underlying disorder.
Times 01-Dec-1994, Independent 30-Nov-1994, [1995] Fam 133
England and Wales
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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.78057
A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those who were also detained under the MHA by reason of transfer and restriction directions given by the Home Secretary under sections 47 and 49 respectively. ‘I [do not] see anything unjust or illogical in two separate codes existing which cannot be triggered simultaneously, but each of which at an appropriate time, depending on the circumstances, can be triggered so as to achieve a judicial hearing. ‘ The Home Secretary’s powers to refer a case back to the Court of Appeal (Criminal Division) was an integral part of the just functioning of the overall process of criminal justice.
Simon Brown LJ
Times 29-Jul-1994, [1995] QB 43, [1995] 1 WLR 734
Criminal Justice Act 1991 31 Sch 12 9(3), Mental Health Act 1983 47 49
England and Wales
Appeal from – Regina v Secretary of State for the Home Department, ex parte Hickey and Others QBD 28-Oct-1993
Parole provisions are to apply to life prisoners who had been transferred transferred to a mental hospital. . .
Cited – Thynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
Confirmed – Regina (D) v Secretary of State for the Home Department QBD 19-Dec-2002
The applicant had been a discretionary life prisoner. His minimum period of detention had passed, but he continued to be detained under a transfer order for his treatment as mental health patient.
Held: The absence of any means for him to . .
Cited – 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.
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.87747
A Local Authority may admit a minor in care to a mental hospital for assessment or treatment. Section 131 merely preserves or confirms the common law and previous law. Consent requires proof of conduct and a reasoning capacity.
Lloyd LJ
Ind Summary 12-Apr-1993, [1993] FLR 187
England and Wales
Cited – L v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.87087
A doctor may deny a patient access to his health records if it is in the patient’s best interests to do so. There is no common law right for a patient to see his own medical records, and the Act is not retrospective.
Gazette 19-Oct-1994, Independent 07-Sep-1994, Times 16-Aug-1994, [1995] 1 All ER 357
Access to Health Records Act 1990
England and Wales
Appeal from – Regina v Mid Glamorgan Family Health Services and Another, ex parte Martin QBD 2-Jun-1993
The Access to Health Records Act 1990 did not give retrospective rights of access to records which had been created before it was brought into effect. . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.87336
It was not unlawful for a patient to be detained for treatment, even though he was untreatable, and unwilling to be treated. A Mental Health tribunal appeal was to be allowed where patient was re-admitted.
Gazette 08-Jun-1994, Gazette 30-Mar-1994, Times 02-Mar-1994
Mental Health Act 1983 72(1)(b)
England and Wales
Appeal from – Regina v Cannons Park Mental Health Review Tribunal, Ex Parte A QBD 24-Aug-1993
It was unlawful to detain a psychopath for treatment where in fact his condition was untreatable. . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.86290
Procedures for emergency applications to authorise cessation of medical care.
Times 19-Jan-1994
England and Wales
Updated: 26 October 2022; Ref: scu.80686
Anyone using violence against a member of staff at a hospital can only expect a sentence of immediate imprisonment. That did not mean the court could not make full allowance for the degree of violence used and the surrounding circumstances.
Times 01-Dec-1999
England and Wales
Updated: 25 October 2022; Ref: scu.88556
[2016] EWCOP 28
England and Wales
Updated: 19 October 2022; Ref: scu.566557
[2011] EWCOP 3522
England and Wales
See Also – London Borough of Hillingdon v Neary and Others CoP 29-Dec-2011
. .
Lists of cited by and citing cases may be incomplete.
Updated: 11 October 2022; Ref: scu.524764
Doctors are to take great care when considering making a recommendation of an order under sections 37 or 41.
Ind Summary 17-Jul-1995
England and Wales
Updated: 08 October 2022; Ref: scu.88328
[2005] EWHC 17 (Admin)
England and Wales
Updated: 16 September 2022; Ref: scu.442239
Application to withdraw active medical treatment for patient D who was in permanent vegetative state
Peter Jackson J
[2012] EWHC 885 (COP), [2012] COPLR 493
England and Wales
Updated: 15 September 2022; Ref: scu.464678
Ryder J
[2011] EWHC 1539 (Admin)
England and Wales
Updated: 13 September 2022; Ref: scu.440827
Challenge to refusal of respondent to supply drug.
Collins J
[2016] EWHC 1395 (Admin)
England and Wales
Updated: 12 September 2022; Ref: scu.565721
Mental health
[2011] UKUT 107 (AAC)
England and Wales
Updated: 07 September 2022; Ref: scu.433522
Appeal against a decision refusing an application by the council to declare unlawful a decision of the the respondents to move SL from residential accommodation provided by the National Society for Epilepsy into other accommodation.
Held: The appeal failed: ‘The context here is an assessment under s.47 in which . . the duty is owed to SL to carry out a proper assessment of her needs. Nothing in that context requires BCC to be consulted before a care plan can be put into place. The obligation of a local authority to provide for those in need of care and attention due to age, illness or disability who are ordinary resident in their area is long-standing and is now established in s.21 of the 1948 Act. The 1990 Act did not alter this. Consequently BCC assumed responsibility for SL when she moved to private accommodation in their area and could have carried out their own s.47 assessment to resolve any issues between them and the LHA. This and the other factors . . point in my view decisively against the implication of the legal duty which is contended for.’
Pill, Patten, Munby LJJ
[2011] EWCA Civ 457, [2011] ACD 83, [2011] Fam Law 814, (2011) 14 CCL Rep 426, [2012] PTSR 854,
England and Wales
Updated: 06 September 2022; Ref: scu.432834
[2000] EWHC 144 (COP)
England and Wales
Updated: 04 September 2022; Ref: scu.431227
[2010] EWHC 785 (Fam)
England and Wales
Updated: 03 September 2022; Ref: scu.430380
The claimant was elderly and in need of care in a nursing home. She claimed that her care needs had been assessed by an unlawful protocol applied by the health authority. She said that she qualified under the criteria for Continuing Health Care.
Held: The question for the court was whether in carrying out its assessment the Defendant had taken a lawful approach in, and by applying, its criteria, and whether it did not apply the primary health need approach. The criteria used were flawed as alleged.
Charles J
[2006] EWHC 44 (Admin), [2006] LGR 491
National Health Service Act 1977 17
England and Wales
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Regina v North Derbyshire Health Authority ex parte Kenneth Graeme Fisher Admn 11-Jul-1997
The court considered the duty of the authority to take account of guidance issued by the Secretary of State: ‘If the circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it . .
Cited – Green, Regina (on the Application of) v South West Strategic Health Authority Admn 28-Oct-2008
The claimant said that whilst resident in a care home, her care should have been paid for as health care under ‘Continuing Health Care.’ She said that the decision maker had failed to comply with the Health Authorities guidelines.
Held: In . .
Cited – Forge Care Homes Ltd and Others, Regina (on The Application of) v Cardiff and Vale University Health Board and Others SC 2-Aug-2017
The court was asked who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.238156
Application by an NHS Trust for the consent or approbation of the court to proposed medical treatment of a seven-year-old child. The child was born with multiple medical problems, and as a result, very considerable mental and physical developmental delay. She has received a great deal of help and treatment throughout her life from the hospital of the NHS Trust. There had been a good working relationship between the staff and treating doctors and the parents, and in particular with the mother of the child, with whom she lived. ‘The purpose of these few words is solely to explain why I am imposing temporarily what has just been described as a blanket injunction on any reporting whatsoever – whether in a newspaper, by broadcast, or in any form of web-based communication – of the existence of these proceedings or anything that has taken place in court today. I do so because that is, of course, a very strong and grave restriction on the Convention right of freedom of expression which underpins the democratic rights of us all. These proceedings were listed for hearing in public, and every single word of them today has taken place in public, with journalists present in the court room. I am now delivering this short judgment in public, but this judgment, like everything else that has been said today, will also be the subject of the same temporary blanket restraint.’
Holman J
[2013] EWHC 4043 (Fam)
England and Wales
Updated: 31 August 2022; Ref: scu.519045
An NHS Trust, sought declarations in relation to Child A, who had been declared clinically dead. That declaration was confirmed by two brain stem tests, the latter taking place, confirming the results of the earlier test and, therefore, supporting the declaration i.e. that brain stem death had occurred at 10.10am on that date. He had choked on a satsuma stem. The request was opposed by the parents.
Hayden J
[2015] EWHC 443 (Fam)
England and Wales
Updated: 29 August 2022; Ref: scu.543961
Appeal against refusal of order to remove restrictions imposed under the 1983 Act.
Sedley, Moses, Sullivan LLJ
[2010] EWCA Civ 1273
England and Wales
Updated: 26 August 2022; Ref: scu.425948
Deferred conditional discharge.
[2010] UKUT 319 (AAC)
England and Wales
Updated: 25 August 2022; Ref: scu.425176
Prisoner in secure hospital – application for public hearig of request for discharge – refused
[2010] UKUT 264 (AAC)
Mental Health Act 1983, European Convention on Human Rights
England and Wales
See Also – AH v West London MHT (J) UTAA 17-Feb-2011
Order for public hearing of detention review under Mental Health Act – at request of AH. . .
Cited – Regina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2022; Ref: scu.423213
Sir Nicholas Wall P
[2010] EWHC 1910 (Fam)
England and Wales
Updated: 21 August 2022; Ref: scu.421092
E, now aged 19, suffered a genetic condition leading to severe learning disability, and a lack of mental capacity. After being in the care of F, but displaying potentially violent behaviours, he was removed against his and F’s will to the care of the local authority. G, his sister had applied for his return home, or to F. An order had been made that pending a review and arrangements for his return, E should stay with the local authority. G now renewed her application for permission to appeal.
Held: Permission was granted on several grounds, and the court expressed a strong desire that it should be listed urgently.
Lord Neuberger MR, Munby LJ
[2010] EWCA Civ 548
European Convention on Human Rights 5 8
England and Wales
Appeal From – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Leave to appeal – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 August 2022; Ref: scu.416783
The claimant had said that his detention under the 1983 Act was unlawful, and that the court should issue a writ of habeas corpus for his release. Having been released he sought damages on the basis that his human rights had been infringed. The admission had been made despite the claimant’s brother having notified the defendant of his objections under 11(4), the hospital had made the order without reference to him.
Held: The claim failed.
Collins J
[2010] EWHC 1349 (Admin), [2010] Med LR 362, [2010] ACD 78
Mental Health Act 1983 3 139, Human Rights Act 1998, European Convention on Human Rights 5 8
England and Wales
Cited – E, Regina (on the Application of) v Bristol City Council Admn 13-Jan-2005
The patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – Regina v Managers of South Western Hospital and Another, Ex Parte M QBD 24-Mar-1993
The patient was detained on the application of an AMHP. In purported pursuance of section 11(4) the AMHP had consulted the patient’s mother as her nearest relative. However, the patient’s mother was not ordinarily resident in the UK, and, according . .
Cited – Prison Officers Association v Iqbal CA 4-Dec-2009
The claimant, a prisoner, alleged false imprisonment. The prison officers had taken unlawful strike action leaving him to be confined within his cell and unable to be involved in his normal activities. In view of the strike, a governor’s order had . .
Appeal from – TTM v London Borough of Hackney and Others CA 14-Jan-2011
The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 August 2022; Ref: scu.416634
Tribunal procedure and practice (including UT) – statements of reasons
[2010] UKUT 32 (AAC)
England and Wales
Updated: 17 August 2022; Ref: scu.410611
Geraldine Andrews Q.C.
[2010] EWHC 731 (Admin), [2010] ELR 513
England and Wales
Updated: 17 August 2022; Ref: scu.408637
Application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney for property and financial affairs.
Lush SJ
[2014] EWCOP 36
England and Wales
Updated: 16 August 2022; Ref: scu.537459
The appointment of a guardian in Norway did not displace UK jurisdiction for a patient.
Ind Summary 07-Aug-1995
England and Wales
Updated: 16 August 2022; Ref: scu.85865
The patient sought judicial review of the decision not to fund laparoscopic gastric by-pass surgery. He said that the policy by which all such requests are to be considered and determined exclusively by reference to clinical factors, infringed his Article 8 rights.
Held: The claim failed.
Waksman QC J
[2011] EWHC 872 (Admin)
National Health Service Act 2006, European Convention on Human Rights8
England and Wales
Appeal from – Condliff, Regina (on The Application of) v North Staffordshire Primary Care Trust CA 27-Jul-2011
the claimant, a morbidly obese man, made a funding request to the trust for gastric surgery. This was refused because he did not meet the trust’s policy of offering funding to people who had a body mass index which exceeded a certain level. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.432845
Sir Anthony May
[2009] EWCA Civ 1348
England and Wales
Updated: 11 August 2022; Ref: scu.384059
A decision by a Health Authority to withhold treatment for a patient could be properly so made. It was not ordinarily to be a matter for lawyers. A Health Authority’s withholding of treatment, which might not be in a child’s simple best interests could even so be lawful, but when called upon, it would have to show substantial cause for its decisions.
Where the use of limited resources has to be decided, the undesirability of the court stepping in too quickly was made clear: (Sir Thomas Bingham MR) ‘I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court.’
Sir Thomas Bingham MR: ‘. . . the courts are not, contrary to what is sometimes believed, arbiters as to the merits of cases of this kind. Were we to express opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, then we should be straying far from the sphere which under our constitution is accorded to us. We have one function only, which is to rule upon the lawfulness of decisions. That is a function to which we should strictly confine ourselves.’
Sir Thomas Bingham MR
Independent 14-Mar-1995, Times 15-Mar-1995, [1995] 1 WLR 898, [1995] EWCA Civ 43, [1995] EWCA Civ 49, [1995] Fam Law 480, [1995] 6 Med LR 250, [1995] 1 FLR 1056, [1995] 2 FCR 485, [1995] 2 All ER 129, [1995] COD 407
England and Wales
Cited – Watts, Regina (on the Application of) v Bedford Primary Care Trust and others Admn 1-Oct-2003
The claimant sought hip-replacement treatment. She was first told that she would have to wait a year. As her lawyers pressed the respondent, she looked at obtaining treatment in France. As she decided to take the treatment, the respondent reduced . .
Cited – Rogers, Regina (on the Application of) v Secretary of State for Health Admn 15-Feb-2006
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was . .
Cited – Rogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
See Also – Regina v Cambridge and Huntingdonshire Health Authority Ex Parte B (No 2) CA 27-Oct-1995
A child’s anonymity could removed, where publicity could generate cash for required treatment. . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.86273
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to prosecutions of those who are alleged to have assisted a suicide is lawful. ‘
Held: The first appeal (of Nicklinson) failed (Majority seven to to two) The question of whether the current law on assisted suicide is incompatible with Article 8 lies within the United Kingdom’s margin of appreciation, and is therefore a question for the United Kingdom to decide, and the court did have the constitutional authority to make a declaration of incompatibility of section 2 of the 1961 Act with those article 8 rights. However the issues were inherently ones far better to be decided by Parliament, and Parliament’s assessment should be respected.
In the second appeal, the DPP succeeded in having the decision in favour of AM reversed. Several factors, the judgment by the DPP, the variety of cases, and the need to vary the weight to be attached to them according to the circumstances of each individual case were all proper and constitutionally necessary features of the system of prosecution in the public interest.
Lord Neuberger PSC succinctly described the responsibility of the DPP: ‘The DPP always has the right to decide that it is not in the public interest to prosecute, even where it is clear that an offence was committed; and the DPP has power to stay a private prosecution if satisfied, inter alia, that it is not in the public interest for the prosecution to proceed. All that section 2(4) does, therefore, is to rule out the bringing of a private prosecution for encouraging or assisting a suicide without the DPP’s prior consent (although it is worth noting that, before the creation of the Crown Prosecution Service (‘CPS’), it would have prevented the police prosecuting without the consent of the DPP).’
Lord Neuberger also said: ‘Where the legislature has enacted a statutory provision which is within the margin of appreciation accorded to member states, it would be wrong in principle and contrary to the approach adopted in In re G, for a national court to frank the provision as a matter of course simply because it is rational. However, where the provision enacted by Parliament is both rational and within the margin of appreciation accorded by the Strasbourg court, a court in the United Kingdom would normally be very cautious before deciding that it infringes a Convention right. As Lord Mance said in In re G, the extent to which a United Kingdom court should be prepared to entertain holding that such legislation is incompatible must depend on all the circumstances, including the nature of the subject-matter, and the extent to which the legislature or judiciary could claim particular expertise or competence.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes
36 BHRC 465, [2015] 1 AC 657, 139 BMLR 1, [2014] WLR(D) 298, [2014] 3 FCR 1, [2014] HRLR 17, [2014] 3 WLR 200, [2014] 3 All ER 843, (2014) 139 BMLR 1, UKSC 2013/0235, [2014] UKSC 38, [2014] 3 WLR 200
WLRD, SC, SC Summary, Bailii Summary, Bailii
Homicide Act 1957, Suicide Act 1961 2, Coroners and Justice Act 2009, European Convention on Human Rights 8
England and Wales
See Also – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
At Admin – Nicklinson, Regina (on The Application of) v Ministry of Justice Admn 16-Aug-2012
The claimants each suffered ‘locked in syndrome’ after catastrophic health events, and were unable to commit suicide as they would have wished. In one case, the claimant would have needed assistance to travel to a clinic in Switzerland where he . .
Appeal from – Nicklinson and Another, Regina (on The Application of) v A Primary Care Trust CA 31-Jul-2013
The claimant had suffered a severe form of locked-in syndrome, and would wish to die. He sought a declaration that someone who assisted him in his siuicide would not be prosecuted for murder.
Held: The position in law that voluntary euthanasia . .
Cited – Rex v Croft CCA 1944
A person who was present at the suicide of another and who assisted or encouraged the suicide, is guilty of murder as a principal in the second degree. The survivor of a suicide pact was properly convicted of murder. The court considered liability . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Inglis, Regina v CACD 12-Nov-2010
The appellant was mother of the victim. He had suffered catastrophic injuries. She had tried to end his life in a ‘mercy killing’, but was discovered, charged with attempted murder, and released on bail. On a second occasion she injected him with a . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – In Re B (A Minor) (Wardship: Medical Treatment) CA 1981
The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – In re J (a Minor) (Wardship: Medical treatment) CA 1-Oct-1990
J was born at 27 weeks’, weighing only 1.1kg. He suffered very severe and permanent brain damage at the time of his birth, the brain tissue then lost being irreplaceable. He was epileptic and the medical evidence was that he was likely to develop . .
Cited – Ms B v An NHS Hospital Trust FD 22-Mar-2002
The applicant had come to suffer from a completely disabling condition, and requested that her life support machine be turned off. She did not want to live on a ventilator, and had made a living will. She was found at first to have capacity to make . .
Cited – In re B (Consent to treatment: Capacity) FD 22-Mar-2002
The claimant had suffered catastrophic injuries, leaving her unable to breathe without artificial help. She eventually decided that she wanted to refuse treatment. The health authority took this as an indication of lack of capacity, and refused to . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – In re B (Consent to treatment: Capacity) FD 22-Mar-2002
The claimant had suffered catastrophic injuries, leaving her unable to breathe without artificial help. She eventually decided that she wanted to refuse treatment. The health authority took this as an indication of lack of capacity, and refused to . .
Cited – Koch v Germany ECHR 19-Jul-2012
Article 8-1
Respect for private life
Refusal by the German courts to examine the merits of an application by a man whose wife had just committed suicide in Switzerland after having attempted unsuccessfully to obtain authorisation to . .
Cited – Gross v Switzerland ECHR 14-May-2013
gross_switzerlandECHR2013
ECHR Article 8
Positive obligations
Article 8-1
Respect for private life
Lack of clear legal guidelines regulating the prescription of a drug to enable individual not suffering from a . .
Cited – Hasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Cited – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
Cited – Rodriguez v Attorney General of Canada 30-Sep-1993
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Life, liberty and security of the person – Fundamental justice – Terminally ill patient seeking assistance to commit suicide – Whether . .
Cited – Buckley v The United Kingdom ECHR 25-Sep-1996
The Commission had concluded, by a narrow majority, that the measures taken by the respondent in refusing planning permission and enforcing planning orders were excessive and disproportionate, even allowing a margin of appreciation enjoyed by the . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Regina v Kennedy HL 17-Oct-2007
The defendant had been convicted of manslaughter. He had supplied a class A drug to a friend who then died taking it. The House was asked ‘When is it appropriate to find someone guilty of manslaughter where that person has been involved in the . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Greens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
Cited – Sinclair Collis Ltd, Regina (on The Application of) v The Secretary of State for Health CA 17-Jun-2011
The claimants sought to challenge the validity of rules brought in under the 2009 Act as to the placement of cigarette vending machines in retail outlets. They said it was a a national measure restricting the free movement of goods. The . .
Cited – A, B And C v Ireland ECHR 16-Dec-2010
Grand Chamber – The Court considered the prohibition of abortion in Ireland: ‘The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
Cited – Haas v Switzerland ECHR 20-Jan-2011
The applicant was severely bipolar, and wanted to obtain a lethal dose of a drug to kill himself, but could not do so, because Swiss law required him to get a prescription, and, before he could do that, he needed a psychiatric assessment. Relying on . .
Cited – Lautsi v Italy ECHR 18-Mar-2011
(Grand Chamber) The applicants complained that the presence in all state schoolrooms of a crucifix on the wall infringed the principle of secularism. The routine presence in state school classrooms of a crucifix, which was not used for worship, . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Abdullah Yasa And Others v Turkey ECHR 16-Jul-2013
Article 3
Degrading treatment
Inhuman treatment
Serious injury to nose caused by tear gas canister fired by police officer: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Weber and Saravia v Germany ECHR 29-Jun-2006
(Admissibility) ‘The first applicant is a freelance journalist who works for various German and foreign newspapers, radio and television stations on a regular basis. In particular, she investigates matters that are subject to the surveillance of the . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Gillan and Quinton v The United Kingdom ECHR 12-Jan-2010
The claimants had been stopped by the police using powers in the 2000 Act. They were going to a demonstration outside an arms convention. There was no reason given for any suspicion that the searches were needed.
Held: The powers given to the . .
Cited – Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
At SC – Nicklinson and Lamb v United Kingdom ECHR 16-Jul-2015
The applicants, suffering life threatening and severely disabling conditions, complained of laws which would allow the criminal prosecutions of those assisting them to end their lives. . .
At HL – Nicklinson and Lamb v The United Kingdom ECHR 23-Jun-2015
ECHR Article 8-1
Respect for private life
Ban on assisted suicide and voluntary euthanasia: inadmissible
Facts – The first applicant is the wife of Tony Nicklinson, now deceased, who suffered . .
Cited – Kenward and Another, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 4-Dec-2015
The claimants challenged the policy issued by the DPP on assisted suicide following the Nicklinson case.
Held: The request for judicial review was refused.
Sir Brian Leveson P said: ‘It is important not to misunderstand the effect either . .
Cited – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.527183
[2006] EWHC 2659 (Admin)
England and Wales
Updated: 04 August 2022; Ref: scu.376256
[2006] EWHC 3194 (Admin)
England and Wales
Updated: 04 August 2022; Ref: scu.376259
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking indoors, but rather as to the ban on smoking in the grounds and on home visits, which, by creating a comprehensive ban, prevented detained patients from smoking anywhere.
Held: The appeal was allowed in part. The respondent had not considered the principle that their actions should represent the minimum interference with a restrained person’s freedoms necessary to achieve the intended purpose. The absolute prohibition on having tobacco products and the related powers to search and confiscate were illegal and were nullified.
‘The Board did not purport to act under the 2003 Act in instituting the policy of prohibiting the possession of tobacco products, searching for such products and confiscating them. It may be the case that the consultation exercises which the Board carried out during 2011 were sufficient to comply with the obligations in section 1(2) and (3) of the 2003 Act. But there appears to have been no consideration of the obligation under section 1(4) nor compliance with the obligations to inform and record in the 2005 Regulations. This is not surprising as the Board considered that it was acting under the 1978 Act.’
Lady Hale, Deputy President, Lord Mance, Lord Wilson, Lord Reed, Lord Hodge
[2017] UKSC 31, [2017] 1 WLR 1455, 2017 GWD 12-169, 2017 SLT 451, [2017] 4 All ER 449, (2017) 156 BMLR 35, [2017] WLR(D) 268, UKSC 2015/0135
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video
Mental Health (Care and Treatment) (Scotland) Act 2003, European Convention on Human Rights 8
Scotland
Outer House – CM, Re Judicial Review SCS 27-Aug-2013
(Outer House) The prisoner, held in a high security psychiatric hospital, challenged the outright ban on smoking.
Held: The Lord Ordinary declared that the impugned decision was unlawful so far as it affected Mr McCann both because it was not . .
Extra Div Inner House – SN v Secretary of State for The Home Department SCS 14-Jan-2014
Extra Division, Inner House – . .
Appeal From – Reclaiming Motion Charles McCann v The State Hospital Board for Scotland SCS 12-Aug-2014
Inner House – The house considered a reclaiming motion (appeal) as to the lawfulness of a decision by the respondents to prohibit smoking and the possession of tobacco in the buildings and grounds of the State Hospital, Carstairs. The Board . .
Cited – Lyons, Re Judicial Review SCS 2-Feb-2011
The petitioner was a detained patient, subject to both a compulsion and restriction orders. He objected to a policy restricting visitors from bringing food parcels, and restricting ordering food from outside.
Held: Lady Dorrian held that the . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – Munjaz v The United Kingdom ECHR 17-Jul-2012
The applicant was detained in a secure mental hospital. He complained that he had been held in seclusion.
Held: The complaints under articles 5 and 8 were admissible, but there had been no violation of the applicant’s rights in these . .
Cited – Bruggeman and Scheuten v Federal Republic of Germany ECHR 12-Jul-1977
(Commission) The applicants complained at restrictions on the termination of unwanted pregnancies.
Held: Article 8(1) secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. He . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
Cited – Regina v Broadmoor Hospital Authority, Ex p S CA 1998
Routine and random searches may be an incident of therapeutic detention and treatment. . .
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 August 2022; Ref: scu.581645
A secure hospital’s right to prevent a package or letter being sent out by a patient did not extend to allowing a restriction on publication or recovery of a book manuscript once it had already left the hospital.
Poole J
Times 15-Oct-1998
England and Wales
Appealed to – Broadmoor Hospital Authority and Another v Robinson CA 20-Dec-1999
Where a body was given statutory duties, it would normally be entitled to orders restraining others from interfering with its performance of those duties. A patient detained under the Act had written a book, and the Hospital had sought to restrain . .
Appeal from – Broadmoor Hospital Authority and Another v Robinson CA 20-Dec-1999
Where a body was given statutory duties, it would normally be entitled to orders restraining others from interfering with its performance of those duties. A patient detained under the Act had written a book, and the Hospital had sought to restrain . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 August 2022; Ref: scu.78664
Crane J
[2002] EWHC 1770 (Admin)
England and Wales
Updated: 30 July 2022; Ref: scu.347806
Application for judicial review of the decision of the district judge, sitting at Bath and Wansdyke Magistrates’ Court, not to order a fact-finding exercise rather than a trial.
[2009] EWHC 759 (Admin), [2009] MHLR 71
Powers of Criminal Courts (Sentencing) Act 2000 11(1), Mental Health Act 1983 37(3)
England and Wales
Updated: 30 July 2022; Ref: scu.347435
[2003] EWHC 3467 (Admin)
England and Wales
Updated: 26 July 2022; Ref: scu.344027
The court may determine a case summarily of its own motion, but their power ‘must be exercised appropriately and with a modicum of restraint’.
Horowitz QC
(2009) 12 CCL Rep 671, [2010] Fam Law 244, [2010] WTLR 69, [2009] EW Misc 7 (EWCOP), [2010] 1 FLR 1393
England and Wales
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.406661
Challenge to proposed treatment of young boy with severe major neurone disorder.
Bennett J
[2007] EWHC 1611 (Admin)
England and Wales
Updated: 24 July 2022; Ref: scu.331107
Hale LJ
[2000] EWCA Civ 3028
England and Wales
Updated: 24 July 2022; Ref: scu.330955
[2009] EWHC 491 (Admin)
Health and Social Services and Social Security Adjudications Act 1983 17
England and Wales
Updated: 23 July 2022; Ref: scu.323731
[2008] EWHC 3383 (Admin)
England and Wales
Updated: 23 July 2022; Ref: scu.293961
The Commission declared admissible a complaint from a Broadmoor patient who had been secluded for five weeks after a fire. A friendly settlement was reached, without admission of liability but on the basis that new guidelines for the use of seclusion would be issued, as indeed they were.
(1980) 3 EHRR 131
Human Rights
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.185209
The court heard a dispute between the local authority and members of TC’s family as to his future care. TC suffered dementia and had been given notice to leave his nursing home, and was in hospital.
McFarlane J
[2007] EWHC 2640 (Fam)
England and Wales
Updated: 21 July 2022; Ref: scu.279033
A Court reviewing a decision of the Medicines Control Agency does not decide whether the product is a medicine, but whether the decision had been properly reached.
Collins J
Times 29-Jul-1997, [1997] EWHC Admin 674
England and Wales
Appeal from – Regina v Medicines Control Agency ex parte Pharma Nord Ltd CA 10-Jun-1998
Once the Medicines Control Agency has decided that a product is a medicinal product and licensable as such, the courts should not seek to substitute their own judgment. Residuary discretion for declaration not used. . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.87315
Mummery, Richards, Stanley Burton LJJ
[2008] EWCA Civ 1112, [2008] MHLR 306
England and Wales
Updated: 19 July 2022; Ref: scu.277309
[2008] EWHC 2315 (Admin)
England and Wales
Updated: 19 July 2022; Ref: scu.277011
[2008] EWHC 2356 (Admin)
England and Wales
Updated: 19 July 2022; Ref: scu.276989
Application for judicial review of decision to limit funding for drug for care of cancer patients.
Burnett J
[2008] EWHC 1908 (Admin)
England and Wales
Updated: 19 July 2022; Ref: scu.272757
The court considered issues arising on the making of hospital orders by criminal courts: ‘ the intention of the section is that someone made the subject of a hospital order should take up a place at a hospital or other unit specified in the court order within 28 days of the order. The broad issue that arises for consideration in this case is the legal status of someone who a court intends should be received into a particular hospital or unit pursuant to such an order within 28 days of the order, but in fact is not received into that hospital or unit until after the expiration of that period with no additional authority by the court having been given. Does that result in the court’s order becoming frustrated and of no further effect such that the continued detention of the patient thereafter is unlawful? Or does the order still have effect and the continued detention fall to be treated as being authorised by the order of the court?’
Foskett J
[2008] EWHC 986 (Admin), [2008] MHLR 139, [2008] LS Law Medical 359
England and Wales
Updated: 14 July 2022; Ref: scu.267584
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 the UK.
Held: The review was successful. It was not correct to say that somebody could not become ordinarily resident here because their asylum application had been turned down.
Mitting J
[2008] EWHC 855 (Admin), Times 11-May-2008
National Health Service (Charges to Overseas Visitors) Regulations 1989 (SI/1989/306)
Still good law – 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 July 2022; Ref: scu.267084
[2007] NIQB 104
Northern Ireland
Updated: 12 July 2022; Ref: scu.263308
Sir James Munby P FD
[2016] EWHC 1330 (Fam)
Human Fertilisation and Embryology Act 2008
England and Wales
See Also – Re N FD 8-Jun-2016
The parties who had undertaken fertility treatment leading to the birth of the child, but where the clinic had failed to carry out the necessary admministrative procedures sought ratification of their status as the legal parents. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.565534
Beatson J
[2007] EWHC 1697 (Admin)
Updated: 11 July 2022; Ref: scu.254614
Appeal against refusal of viability order for child – admission of fresh evidence.
[2007] EWCA Civ 392
England and Wales
Updated: 11 July 2022; Ref: scu.251763
Heatson J
[2007] EWHC 776 (Admin)
Updated: 10 July 2022; Ref: scu.250701
‘This application for judicial review concerns alleged failures of the London Borough of Islington to make provision according to law for the social, recreational and educational needs of the applicant . . who is now 25 and suffers from Seckels syndrome. He is blind, microcephalic, practically immobile, doubly incontinent and largely unable to communicate. He suffers from severe deformities of the chest and spine, a hiatus hernia and a permanent digestive disorder. His size and weight are those of a small child, but his helplessness and dependency are those of a baby. He is reliant on the devoted care of his mother and of others who assist her.’
Sedley J
[1996] EWHC 399 (Admin), (1996) 32 BMLR 136, (1997-98) 1 CCL Rep 119, [1997] ELR 66
England and Wales
Updated: 10 July 2022; Ref: scu.566421
It can be lawful to restrain a mental health patient mother while she was giving birth.
Ind Summary 26-Feb-1996
England and Wales
Updated: 09 July 2022; Ref: scu.89701
The court was asked: ‘Whether there is jurisdiction for the injunctions sought by the Claimant to be made under the court’s inherent jurisdiction in relation to vulnerable adults or under s 222 Local Government Act 1972’ on certain facts.
Theis DBE J
[2011] EWHC 1022 (Fam)
Mental Capacity Act 2005, Local Government Act 1972 222
England and Wales
Updated: 09 July 2022; Ref: scu.441417
The court may intervene to decide on the care of a mentally handicapped adult where there is a risk of harm to that adult if no care arrangements are made.
Ind Summary 14-Aug-1995
England and Wales
Updated: 09 July 2022; Ref: scu.85896
Appeal against refusal of community leave of absence for mental patient.
Silber J
[2006] EWHC 1903 (Admin)
Updated: 07 July 2022; Ref: scu.243382
[2006] ScotSC 55
Scotland
Updated: 07 July 2022; Ref: scu.243215
[2005] EWHC 2791 (Admin)
England and Wales
Updated: 06 July 2022; Ref: scu.241530
Moses J
[2004] EWHC 1029 (Admin)
England and Wales
Updated: 06 July 2022; Ref: scu.241525
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 which treated financial considerations as irrelevant, but at the same time its policy is to refuse funding save where exceptional personal or clinical circumstances can be shown. There was no evidence that one woman in a group who might benefit might have a greater clinical need than another, and ‘there is no rational basis for distinguishing between patients within the eligible group on the basis of exceptional clinical circumstances any more than on the basis of personal, let alone social, circumstances.’ Where fundamental rights are involved the court must subject the decision to rigorous scrutiny.
The court interpreted the decision in North West Lancashire: ‘a policy of withholding assistance save in unstated exceptional circumstances . . will be rational in the legal sense provided that it is possible to envisage and the decision-maker does envisage, what such exceptional circumstances might be. If it is not possible to envisage any such circumstances then the policy will be in practice a complete refusal of assistance: and irrational as such because it is sought to be justified not as a complete refusal but as a policy of exceptionality.’
Lord Justice Buxton, Lord Justice Brooke, Sir Anthony Clarke MR
[2006] EWCA Civ 392, [2006] 1 WLR 2649
National Health Act 1977 16A, National Health Service (Functions of Strategic Health Authorities and Primary Care Trust etc) Regulations 2002
England and Wales
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 . .
Interpreted – 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 . .
Cited – Regina v Warwickshire County Council, Ex parte Collymore 1995
The court questioned the over rigid application of a policy in a decision by the respondent. . .
Cited – Regina v North Derbyshire Health Authority ex parte Kenneth Graeme Fisher Admn 11-Jul-1997
The court considered the duty of the authority to take account of guidance issued by the Secretary of State: ‘If the circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it . .
Cited – Regina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
Cited – Regina v Cambridge and Huntingdon Health Committee Ex Parte B CA 10-Mar-1995
A decision by a Health Authority to withhold treatment for a patient could be properly so made. It was not ordinarily to be a matter for lawyers. A Health Authority’s withholding of treatment, which might not be in a child’s simple best interests . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 July 2022; Ref: scu.240360
[2006] EWHC 181 (Admin)
England and Wales
Updated: 05 July 2022; Ref: scu.238663
Order for public hearing of detention review under Mental Health Act – at request of AH.
[2011] UKUT 74 (AAC)
England and Wales
See Also – AH v West London MHT UTAA 29-Jul-2010
Prisoner in secure hospital – application for public hearig of request for discharge – refused . .
Cited – Regina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 July 2022; Ref: scu.433482
Newman J
[2004] EWHC 51 (Admin)
England and Wales
Updated: 01 July 2022; Ref: scu.226860
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial failing and whether it made the proceedings a nullity.
Held: The claimant’s appeal failed. An action begun without the prior leave of the High Court was a complete nullity.
Lord Bingham of Cornhill said: ‘the words first introduced in section 16(2) of the 1930 Act (‘No proceedings, civil or criminal, shall be brought’) appear to be clear in their effect and have always been thought to be so. They were introduced with the obvious object of giving mental health professionals greater protection than they had enjoyed before. They were re-enacted with knowledge of the effect the courts had given to them. ‘ (Lord Woolf and Baroness Hale dissenting)
Baroness Hale of Richmond (dissenting) said: ‘I approach the task of construing section 139(2), therefore, on the basis that Parliament, by enacting the procedural requirement to obtain leave, did not intend the result to be that a claimant might be deprived of access to the courts, unless there is express language or necessary implication to the contrary. If there is no express language, there will be no necessary implication unless the legislative purpose cannot be achieved in any other way. Procedural requirements are there to serve the ends of justice, not to defeat them. It does not serve the ends of justice for a claimant to be deprived of a meritorious claim because of a procedural failure which does no substantial injustice to the defendant.’
Lord Bingham of Cornhill, Lord Woolf, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
Times 05-Jul-2007, [2007] UKHL 31, [2007] 4 All ER 177, [2007] 1 WLR 1910
England and Wales
Cited – Rendall v Blair 1890
Where a statute requires leave to commence proceedings to be granted, a failure to obtain such consent does not automatically render the proceedings a nullity.
Bowen LJ said: ‘this section is not framed in the way in which sections are framed . .
Appeal from – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
Cited – Regina v Immigration Appeal Tribunal, ex Parte Jeyeanthan Admn 3-Apr-1998
An appeal by the Home Secretary against a ruling that he had to use the same prescribed form as would be used by the asylum seeker. The use of a letter which omitted a substantial and important declaration was invalid. Lord Woolf MR made plain the . .
Cited – In re Saunders (A Bankrupt) ChD 1997
Very emphatic language was required in a statute before want of leave should, without more, result in proceedings being treated as a nullity. Leave could in appropriate circumstances be granted after the event notwithstanding the proceedings had . .
Cited – Pyx Granite Ltd v Ministry of Housing and Local Government HL 1959
There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court . .
Cited – Regina v Angel CACD 1968
The failure to obtain the consent of the Director of Public Prosecutions to a prosecution under section 8 of the Sexual Offences Act 1967 rendered the whole of the trial, including the committal proceedings, a complete nullity. . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Cited – Bradford Corporation v Myers HL 1916
The 1893 Act was criticised for its complexity. A section gave protection to public authorities for ‘any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any power duty or authority, or in respect of any . .
Cited – Magor and St Mellons Rural District Council v Newport Corporaion HL 1951
The Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect.
Held: Rights to compensation are well capable of falling within the definition of ‘property of a company’ in the relevant provisions of the . .
Cited – Secretary of State for Defence v Warn HL 1970
A courts martial prosecution begun without the necessary prior consent, the proceedings were a nullity. . .
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Walkley v Precision Forgings Ltd CA 1978
The plaintiff appealed the strict application of the limitation laws against his claim. He had been injured whilst working as a grinder. He began one claim which lapsed, and began a second claim outside the limitation period, requesting the court to . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – Regina v Pearce CACD 1980
The lack of a required consent by the Attorney General, under section 4(3) of the 1977 Act led to the quashing of the conviction. . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Stubbings and Others v The United Kingdom ECHR 22-Oct-1996
There was no human rights breach where the victims of sex abuse had been refused a right to sue for damages out of time. The question is whether and to what extent differences in otherwise similar situations justify a different treatment in law: . .
Cited – M v United Kingdom ECHR 1987
The protection of those responsible for the care of mental patients from being harassed by litigation is a legitimate objective. . .
Cited – Winch v Jones CA 1986
The court asked as to the criteria which should be applied when considering an application by a mental patient for leave to bring proceedings under section 139: ‘section 139 protects the defendant unless and until the applicant obtains leave. This . .
Cited – In re F (A Child) (Placement Order); C v East Sussex County Council (Adoption) CA 1-May-2008
The father sought to revoke a freeing order. He said that the social workers had conspired to exclude him from the process. The child was born of a casual relationship, and at first he was unaware of the proceedings. On learning of them he sought to . .
Cited – Adorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .
Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Cited – Lalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 June 2022; Ref: scu.254551
Collins J
[2005] EWHC 604 (Admin)
England and Wales
Updated: 29 June 2022; Ref: scu.224527
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be implanted. The claimant said that the Authority had no power to license such a procedure since it would not count as treatment of the mother within the Act.
Held: The Act required only that the procedures undertaken should be in the course of treating the mother. Such overall treatment would include many procedures not directly affecting her. This procedure would therefore be treatment in the context of the treament of the mother. ”Suitable’ is one of those adjectives which leaves its content to be determined entirely by context.’ The Warnock report from which the Act followed allowed explicitly that procedures would develop, and for example that sex selection might come to be considered in future: ‘The authority should be specifically charged with the responsibility to regulate and monitor practice in relation to those sensitive areas which raise fundamental ethical questions.’ It was therefore within the remit of the Authority to consider and therefore licence such procedures.
Lord Steyn, Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood
[2005] UKHL 28, Times 29-Apr-2005, [2005] 1 WLR 1061, [2005] 2 AC 561
Human Fertilisation and Embryology Act 1990 11
England and Wales
Appeal from – Quintavalle, Regina (on the Application of) v Human Fertilisation and Embryology Authority CA 16-May-2003
A licence was sought so that a couple could have a child who would be tissue typed to establish his suitability to provide an umbilical cord after his birth to help treat his future brother. A licence had been granted subject to conditions, and the . .
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B QBD 26-Feb-2003
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents . .
Cited – In Re R (Parental responsibility: IVF baby); D (A Child), Re HL 12-May-2005
The parents had received IVF treatment together, but had separated before the child was born. The mother resisted an application by the father for a declaration of paternity.
Held: The father’s appeal failed. The Act made statutory provision . .
Cited – Office of Fair Trading v Lloyds TSB Bank PlC and Others HL 31-Oct-2007
The House was asked whether the liability of a credit card company under the 1974 Act applied where the contract was performed abroad and subject to foreign law.
Held: The principle which disapplied an English statute in an extra-territorial . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.224490
[2005] EWHC 662 (Admin)
Criminal Procedure (Insanity) Act 1964
England and Wales
Updated: 29 June 2022; Ref: scu.224384
The prisoner had been sentenced but then transferred to a secure mental hospital. Whilst there be acted in a way equivalent to a hostage taking.
Held: Upon his release from the mental hospital the powers as to recall under the prison sentence remained intact, and he was properly returned to prison.
Collins J
Times 10-Sep-2004, [2004] EWHC 2569 (Admin)
England and Wales
Updated: 27 June 2022; Ref: scu.219528
[2001] EWCA Civ 1572
European
Updated: 27 June 2022; Ref: scu.218483
The patient had a violent history. His eventual realease from a secure mental hospital was ordered, but the conditions imposed for his release could not be met. He argued that his continued detention infringed his human rights.
The Honourable Mr Justice Collins
[2004] EWHC 2193 (Admin)
England and Wales
Updated: 21 June 2022; Ref: scu.215930
The court considered the nature of the detention of a defendant when he was found unfit to plead. Rose LJ said: ‘The old orders available to the courts [including the hospital order with restrictions] do not include any punishment or any order that can be seen as retributive or deterrent. With the exception of an absolute discharge, they are concerned with the treatment and care of the accused.’
As to the effect of the Human Rights Convention Rose LJ said: ‘The right to liberty and security is the subject of article 5. Detention after conviction is only one of the cases in which deprivation of liberty is permitted by article 5.5(1). In the present connection, the other relevant paragraph of article 5(1) is (e): the lawful detention of persons of unsound mind. The protection of persons detained on the ground that they are of unsound mind is contained in article 5(4).’
Rose LJ
[2001] EWCA Crim 2024, [2001] MHLR 177, [2002] 1 Cr App R 25, [2002] 1 WLR 824, [2002] Crim LR 57
England and Wales
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 – Norman, Regina v CACD 31-Jul-2008
The defendant suffered a degenerative disease affecting his mental capacity, and at trial the issue of his fitness to plead arose.
Held: Where the issue of unfitness arose it was necessary for the court to exercise very careful case management . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 June 2022; Ref: scu.201598
ECJ 1. Community law – Principles – Legal certainty – Protection of legitimate expectations – Prohibition of the use in livestock farming of certain substances having a hormonal action in the absence of unanimity as to their harmlessness – Infringement – None (Council Directive 88/146) 2. Community law – Principles – Proportionality – Prohibition of an economic activity – Whether disproportionate – Assessment criteria – Discretionary power of the Community legislature in the field of the common agricultural policy – Judicial review – Limits (EEC Treaty, Arts 40 and 43) 3. Community law – Principles – Equal treatment – Harmonization measure applied equally to all the Member States – Differing effects depending on the previous state of national law – Discrimination – None 4. Agriculture – Approximation of laws – Prohibition of the use in livestock farming of certain substances having a hormonal action – Objectives pursued – Choice of legal basis – Article 43 of the Treaty – Misuse of powers – None
(EEC Treaty, Arts 39 and 43, Council Directive 88/146) 5. Measures adopted by the Community institutions – Procedure for enactment – Preparatory documents not affected by a procedural defect occurring at the stage of the final decision in the Council leading to annulment by the Court – Adoption of a new measure on the basis of earlier preparatory documents -Legality 6. Measures adopted by the Community institutions – Application ratione temporis – Period for compliance by the Member States with a directive expiring prior to its adoption – Retroactive effect – Permissibility in the light of the objective to be attained and in the absence of any infringement of the principle of the protection of legitimate expectations – Limits -Principle of non-retroactivity of penal provisions (Council Directive 88/146, Art. 10)
1. Having regard to the divergent appraisals by the national authorities of the Member States, reflected in the differences between existing national legislation, of the dangers which may result from the use of certain substances having a hormonal action, the Council, in deciding in the exercise of its discretionary power to adopt the solution of prohibiting them, neither infringed the principle of legal certainty nor frustrated the legitimate expectations of traders affected by that measure. 2. In accordance with the principle of proportionality, which is one of the general principles of Community law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question, it being understood that when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. However, with regard to judicial review of compliance with those conditions it must be borne in mind that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. 3. Although a harmonization measure which is intended to standardize previously disparate rules of the Member States inevitably produces different effects depending on the prior state of the various national laws, there cannot be said to be discrimination where it applies equally to all Member States. 4. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. That was not so in the case of Directive 88/146 prohibiting the use in livestock farming of certain substances having a hormonal action, which was adopted by the Council on the basis of Article 43 of the Treaty alone. By regulating conditions of the production and marketing of meat in order to improve its quality while curbing surplus production, that directive falls within the scope of the measures provided for by the common organization of the markets in meat and thus contributes to the attainment of the objectives set out in Article 39 of the Treaty. 5. The annulment by a judgment of the Court of a Council directive on account of a procedural defect concerning solely the manner in which it was finally adopted by the Council does not affect the preparatory acts of the other institutions. Therefore, these acts need not be repeated when the Council adopts a new directive replacing the one which has been annulled. Changes occurring in the interval in the composition of those institutions are of no effect since they do not affect the continuity of the institutions themselves. Whether or not a subsequent change in circumstances must be taken into consideration is for each institution to assess. 6. By fixing 1 January 1988 as the date of expiry of the period for implementation of Directive 88/146 prohibiting the use in livestock farming of substances having a hormonal action, Article 10 of the directive gives it retroactive effect in so far as the directive was adopted and notified in March 1988. Outside the criminal sphere, such retroactive effect is permissible, since, first, the directive replaced an earlier directive annulled because of a procedural defect, and the Council considered it necessary in order to avoid a temporary legal vacuum during the period between the annulment of one instrument and its replacement by a lawfully adopted text with regard to the existence of a basis in Community law for national provisions adopted by the Member States in order to comply with the directive which was annulled, and, secondly, there was no infringement of the legitimate expectations of the traders concerned, in light of the rapid succession of the two directives and the reason for which the first one was annulled. As regards the criminal sphere, on the other hand, Article 10 of the directive cannot be interpreted as requiring Member States to adopt measures which conflict with Community law, in particular with the principle that penal provisions may not have retroactive effect, which Community law incorporates, as a fundamental right, among its general principles. Nor may it provide a basis for criminal proceedings instituted under provisions of national law which may have been adopted in implementation of the annulled directive and whose sole basis is to be found therein.
In relation to an alleged infringement of the principle of legal certainty: ‘ . . having regard to the discretionary power conferred on the Council in the implementation of the common agricultural policy, be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion.’
and . . ‘The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.’
C-331/88, R-88/14, [1990] EUECJ R-88/146, [1990] ECR I-4023
EEC Treaty 39 43, Council Directive 88/146
European
Cited – Consorzio Del Prosciutto Di Parma v Asda Stores Limited and others HL 8-Feb-2001
The name ‘Parma Ham’ was controlled as to its use under Italian law, and the associated mark, the ‘corona ducale’, was to be applied to a sale of Parma Ham, including any packaging. Proper Parma Ham was imported and resold through the defendant’s . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Rotherham Metropolitan Borough Council and Others, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 25-Feb-2015
Appeal about the distribution of European Structural Funds among the regions of the United Kingdom. It arises out of the complaint of a number of local authorities in Merseyside and South Yorkshire about the way in which it is proposed to distribute . .
Cited – Akerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Cited – Secretary of State for Work and Pensions v Gubeladze SC 19-Jun-2019
The claimant had come from Latvia to the UK in 2008, but not registered under the Worker Registration Scheme until 2010. She now sought state pension credit. The SS appealed from a judgment that it was to calculate her entitlement to include her . .
Cited – Micula and Others v Romania SC 19-Feb-2020
The appellant sought to enforce a international arbitration award against the respondent. The award was made under an arrangement which became unlawful on Romania’s accession to the EU, and Romania obtained s stay pending resolution by the CJEU.
Lists of cited by and citing cases may be incomplete.
Updated: 13 June 2022; Ref: scu.134975
Proceedings before the Mental Health Review Tribnal had been very nearly all held in private. The patient, Ian Brady sought to have his hearing in public.
Held: Beatson J approved the Tribunal’s reasons forfind that their privacy rules were a proper and proportionate departure from the principle of open justice and thus compatible with article 6 of the European Convention on Human Rights:
‘By definition the issues which the mental health review tribunal has to deal with involve personal and clinical confidential information affecting individuals who are often very vulnerable and not always in a position to make an informed decision as to what may or may not be in their best interests. Questions of capacity may frequently arise and clinical progress may be affected by the consequences of publicity.’
Beatson J
[2005] 1 WLR 2469, [2004] EWHC 1749 (Admin), [2005] 2 All ER 820
Mental Health Act 1983 78, Mental Health Review Tribunal Rules 1983, Administration of Justice Act 1960 12
England and Wales
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 (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.199832
Secretary of State for Health entitled to have regard to the fitness of doctor.
Times 10-Dec-1993
England and Wales
Updated: 11 June 2022; Ref: scu.88210
[2004] EWHC 650 (Admin)
England and Wales
Updated: 10 June 2022; Ref: scu.195562
The medical member of the review tribunal to which the appellant had applied for his discharge from detention under section 3 of the Mental Health Act 1983 who was a consultant psychiatrist was not disqualified from considering the appellant’s case because he was employed by the Mersey Care National Health Service Trust: ‘We consider that [the reasonable and informed] observer would expect a consultant psychiatrist to apply the same concerns for the welfare of a patient, whether that patient was the consultant’s own, or a patient whose liberty depended upon the objective clinical judgment of the consultant in the context of a tribunal hearing.’
Lord Justice May The Hon Mr Justice Parker Lord Phillips Of Worth Matravers, Mr
[2004] EWCA Civ 311
England and Wales
Cited – Gillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194581
[2003] EWHC 2864 (Admin)
England and Wales
Updated: 08 June 2022; Ref: scu.188526
[2003] EWHC 2460 (Admin)
England and Wales
Updated: 08 June 2022; Ref: scu.187604
The applicant sought his release from detention in hospital, correction of records at the Crown Court, and confirmation that his detention had infringed his human rights. He had been accused of two assaults, but was found unfit to plead under section 4 by a jury. He was however later made subject to the s37 order.
Held: Following Fairley, the court did not have power to make the order it had. However the earlier order remained valid until revoked.
The Honourable Mr Justice Stanley Burnton
[2003] EWHC 2020 (Admin)
Offences Against the Persons Act 1861 16, Criminal Procedure (Insanity) Act 1964 4, Mental Health Act 1983 31
England and Wales
Cited – Regina v H (On appeal from the Court of Appeal (Criminal Division)) HL 30-Jan-2003
The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the . .
Cited – Regina v Fairley CACD 2003
A section 37 order is not available to a court where a defendant has been found unfit to plead, with an additional finding fo fact that he had committed the act. That finding was not a finding of guilt. . .
Cited – Chuck v Cremer 24-Jul-1846
The plaintiff’s solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been . .
Cited – Hadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.185651
[2003] EWHC 1182 (Admin)
England and Wales
Updated: 07 June 2022; Ref: scu.185343
[2003] EWHC 1272 (Admin)
England and Wales
Updated: 07 June 2022; Ref: scu.185364
[2003] EWHC 1782 (Admin)
England and Wales
Updated: 07 June 2022; Ref: scu.184845
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 had been given, and the concept under the Act of ‘treatment together’. Any interference with the right to family life was proportionate and necessary.
The President
[2003] EWHC 259 (QB), Gazette 01-May-2003, [2003] 1 FLR 1091
Family Law Act 1986 55A, Human Fertilisation and Embryology Act 1990 28 29
England and Wales
Cited – U v W (Attorney-General Intervening) FD 4-Mar-1997
The restriction on the freedom to provide human fertility treatment to licensees of the Authority was not a breach of the EU treaty. There is a particular need for certainty in provisions affecting the status of a child. There is a mental element . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Kroon And Others v The Netherlands ECHR 27-Oct-1994
Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
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 – 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 – McMichael v United Kingdom ECHR 2-Mar-1995
In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. . .
Cited – Re H; Re G (Adoption: Consultation of Unmarried Fathers) CA 2001
Not every natural father has a right to respect for his family life with regard to every child of whom he may be the father (see also McMichael v United Kingdom (1995) 20 EHRR 205). The application of Art 8(1) will depend upon the facts of each . .
Cited – Re S (Freeing for Adoption) CA 2002
If parliament always foresaw what possibilities might arise, courts would never have anything to interpret. . .
Cited – 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 . .
Cited – Mikulic v Croatia ECHR 7-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 8; Violation of Art. 13 with regard to the complaint under Article 6-1; Not necessary to examine Art. 13 with regard to the . .
Cited – Re R (A Child) CA 19-Feb-2003
. .
Cited – Regina (Rose and Another) v Secretary of State for Health and the Human Fertilisation and Embryology Authority Admn 26-Jul-2002
Applications were made, challenging the refusal of the Secretary of State for Health, and the Human Fertilisation and Embryology Authority, to institute a system where a child born by artificial insemination could make enquiries as to his or her . .
Cited – Johansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
See also – Leeds Teaching Hospitals NHS Trust v Mr and Mrs A, YA, ZA, Mr and Mrs B T Authority QBD 4-Nov-2002
At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
Held: Difficult issues of . .
See also – Leeds Teaching Hospitals NHS Trust v Mr and Mrs A, YA, ZA, Mr and Mrs B T Authority QBD 4-Nov-2002
At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
Held: Difficult issues of . .
Cited – Quintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 June 2022; Ref: scu.179570
