Tag: Health

Djaba v West London Mental Health Trust and Another: CA 28 Jun 2017

The claimant appealed against rejection of his request for release from liability to be detained for medical treatment.

Judges:

Arden, McCombe, Sales LJJ

Citations:

[2017] EWCA Civ 436

Links:

Bailii

Statutes:

Mental Health Act 1983, European Convention of Human Rights 5 8

Jurisdiction:

England and Wales

Health, Human Rights

Updated: 27 March 2022; Ref: scu.588320

Liverpool City Council and Another, Regina (on The Application of) v The Secretary of State for Health: Admn 2 May 2017

Four English councils challenged what they describe as the government’s ‘ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime’.

Judges:

Garnham J

Citations:

[2017] EWHC 986 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Local Government, Health

Updated: 24 March 2022; Ref: scu.582160

SAD and Another v SED: CoP 4 Nov 2016

This application raises issues in relation to a Lasting Power of Attorney for property and affairs (an LPA) under which SAD and ACD (the Applicants) were appointed attorneys by their mother, SED (the Respondent).

Judges:

Glentworth DJ

Citations:

[2017] EWCOP 3

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Health

Updated: 24 March 2022; Ref: scu.581700

Re TL: CoP 18 Jan 2017

Proceedings in the Court of Protection concern a 41-year-old woman, hereafter referred to as ‘TL’, who has a learning disability and some features of autism.

Judges:

Baker J

Citations:

[2017] EWCOP 1

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 24 March 2022; Ref: scu.581701

YZ, Regina (on The Application of) v Oxleas NHS Foundation Trust and Another: CA 29 Mar 2017

Challenge by way of judicial review to the decision made by a psychiatrist at Oxleas, the first respondent, which operates a Medium Secure Unit for psychiatric patients in Dartford, Kent, to seek to transfer the claimant to Broadmoor Hospital and the decision of Broadmoor to accept him.

Judges:

Lord Thomas of Cwmgiedd, CJ, Hallett, Underhill LJJ

Citations:

[2017] EWCA Civ 203

Links:

Bailii

Jurisdiction:

England and Wales

Health, Prisons

Updated: 24 March 2022; Ref: scu.581300

Westminster City Council v National Asylum Support Service: HL 17 Oct 2002

The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were infirm and whose infirmity was not a consequence of their destitution, had not been excluded. Only able bodied destitute asylum seekers were excluded from benefit, and they had to rely upon the respondent. The House considered the value of the Explanatory notes now published with Acts: ‘Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have.’ Lord Steyn: ‘The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen.’

Judges:

Steyn, Slynn, Hoffmann, Millett and Rodger LL

Citations:

Times 18-Oct-2002, [2002] UKHL 38, [2002] 1 WLR 2956, [2002] 4 All ER 654, [2002] HLR 58, (2002) 5 CCL Rep 511, [2003] BLGR 23

Links:

House of Lords, Bailii

Statutes:

National Assistance Act 1948 21, Immigration and Asylum Appeals Act 1999 95 116

Jurisdiction:

England and Wales

Citing:

Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – River Wear Commissioners v Adamson HL 1877
It was not necessary for there to be an ambiguity in a statutory provision for a court to be allowed to look at the surrounding circumstances.
As to the Golden Rule of interpretation: ‘It is to be borne in mind that the office of the judge is . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – Robinson v Secretary of State for Northern Ireland and Others HL 25-Jul-2002
The Northern Ireland Parliament had elected its first minister and deputy more than six weeks after the election, but the Act required the election to be within that time. It was argued that as a creature of statute, the Parliament could not act . .
Cited – Regina v Westminster City Council ex parte A, London Borough of Lambeth ex parte X and similar CA 17-Feb-1997
This was an appeal from orders of certiorari quashing the decisions of three local authorities refusing to provide accommodation for the respondents, four asylum seekers, whose applications for asylum were presently being considered by the Secretary . .
Cited – Regina v Wandsworth London Borough Council, Ex Parte O; Leicester City Council, Ex Parte Bhikha CA 7-Sep-2000
The applicants were immigrants awaiting determination of their applications for exceptional leave to remain, and who came to suffer from serious illness. Each applied for and was refused assistance from their local authority.
Held: The . .
Cited – Wahid v London Borough of Tower Hamlets CA 7-Mar-2002
Gilliatt The appellant suffered from schizophrenia. He was refused permission to apply for judicial review and for orders requiring the local authority not just to provide suitable accommodation but better . .
Appeal from – Westminster City Council v National Asylum Support Service CA 10-Apr-2001
. .
At first instance – Westminster City Council v National Asylum Support Service Admn 27-Feb-2001
. .

Cited by:

Cited – Regina (on the Application of Mani) v London Borough of Lambeth CA 9-Jul-2003
Where a destitute and disabled asylum seeker had a clear need for care and attention, the local authority had a duty to provide it. The claimant was an asylum seeker, with impaired mobility and a history of mental halth difficulties. At first he was . .
Cited – Regina (on the Application of A) v National Asylum Support Service, London Borough of Waltham Forest CA 23-Oct-2003
A family of asylum seekers with two disabled children would be destitute without ‘adequate’ accommodation. What was such accommodation?
Held: The authority was under an absolute duty to house such a family. In satisfying such duty, it was . .
Cited – Regina, ex parte O v The London Borough of Haringey, The Secretary of State for the Home Department CA 4-May-2004
The court considered the duties of local authorities to support infirm asylum seekers with children.
Held: The authority had an obligation to support the adult, but the responsibility for the children fell on the National Asylum Support . .
Applied – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Attorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .
Cited – Regina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – Phillips v Rafiq and Motor Insurers Bureau (MIB) CA 13-Feb-2007
The MIB appealed from a judgment making it liable for an award of damages to the estate of the deceased who had been a passenger in a vehicle which he knew to be being driven without insurance. The estate had not sued the MIB directly, but first . .
Cited – King v The Serious Fraud Office CACD 18-Mar-2008
Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders . .
Cited – M, Regina (on the Application of) v Slough Borough Council HL 30-Jul-2008
The House was asked ‘whether a local social services authority is obliged, under section 21(1)(a) of the 1948 Act, to arrange (and pay for) residential accommodation for a person subject to immigration control who is HIV positive but whose only . .
Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Cited – Mucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice) HL 21-Jan-2009
The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court. . .
Cited – Rollins, Regina v SC 28-Jul-2010
The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Cited – Horton v Henry CA 7-Oct-2016
No obligation on bankrupt to draw on pension fund
The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension . .
Cited – Hutchings, Re Application for Judicial Review SC 6-Jun-2019
The appellant, a former army officer challenged proceedings against him as to the death of a civilian shot in Northern Ireland in 1974. His trial had been certified for trial by judge alone, and without a jury under section 1 of the 2007 Act.
Lists of cited by and citing cases may be incomplete.

Local Government, Health, Immigration, Benefits, Human Rights

Leading Case

Updated: 23 March 2022; Ref: scu.177452

Kings College Hospital NHS Foundation Trust v Haastrup (Withdrawal of Medical Treatment): FD 29 Jan 2018

Application for permission to withdraw medical treatment of seriously ill child.

Judges:

MacDonal D

Citations:

[2018] EWHC 127 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Kings College Hospital NHS Foundation Trust v Haastrup and Others (No 2) (Permission To Appeal and for Stay) FD 31-Jan-2018
. .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 03 February 2022; Ref: scu.605714

Local Authority X v MM and Another; re MM (An Adult): FD 21 Aug 2007

The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does not . . Put shortly, capacity to consent to sexual relations is issue specific; it is not person (partner) specific.’
Munby J observed: ‘The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?’

Judges:

Munby J

Citations:

[2007] EWHC 2003 (Fam), [2009] 1 FLR 443, [2008] Fam Law 213, (2008) 11 CCL Rep 119, [2008] 3 FCR 788

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Citing:

Cited – X City Council v MB and others; re MAB FD 13-Feb-2006
The adult patient was autistic. The doctors said that he lacked capacity, and the authority sought to prevent his return to Pakistan with, they thought, a view to being married. . .

Cited by:

See Also – Local Authority X v MM and Another (No. 2) FD 16-Nov-2007
. .
Applied – C, Regina v CACD 2008
The defendant appealed against his conviction for sexual assault on a female when she suffered a mental condition which prevented her indicating her refusal of the touching.
Held: The complainant’s irrational fear due to her mental disorder . .
Cited – Regina v C HL 30-Jul-2009
Consent to Sex Requires Capacity
The prosecution appealed against the reversal of the defendant’s conviction for a sexual assault of a woman said to be unable to communicate her refusal to sex because of her mental disorder.
Held: The appeal was allowed, and the conviction . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – PC and Another v City of York Council CA 1-May-2013
It had been decided that PC, a 43 year old woman, had capacity to marry, but the LA now argued that she did not have the capacity to decide to live with her partner, a man who had old convictions for serious sexual assault.
Held: Decisions as . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 03 February 2022; Ref: scu.262185

Schmitt v TUV Rheinland LGA Products GmbH: ECJ 16 Feb 2017

ECJ (Judgment) Reference for a preliminary ruling – Approximation of laws – Industrial Reference for a preliminary ruling – Approximation of laws – Industrial policy – Directive 93/42/EEC – Checks on the conformity of medical devices – Notified body appointed by the manufacturer – Obligations of that body – Defective breast implants – Implants manufactured using silicone – Liability of the notified body

Citations:

ECLI:EU:C:2017:128, [2017] EUECJ C-219/15

Links:

Bailii

Statutes:

Directive 93/42/EEC

Jurisdiction:

European

Health

Updated: 31 January 2022; Ref: scu.575277

Miles and Another v The Public Guardian: ChD 1 Jul 2015

The court was asked whether certain provisions in two lasting powers of attorney were effective.
Nugee J said: ‘It does seem to me that it is right that the Act should be construed in a way which gives as much flexibility to donors to set out how they wish their affairs to be dealt with as possible, the Act being intended to give autonomy to those who are in a position where they can foresee that they may in the future lack capacity . .’

Judges:

Nugee J

Citations:

[2015] EWHC 2960 (Ch)

Links:

Bailii

Statutes:

Mental Capacity Act 2005 9

Jurisdiction:

England and Wales

Health, Agency

Updated: 29 January 2022; Ref: scu.573627

Briggs v Briggs and Others (EWCOP 53): CoP 20 Dec 2016

The court considered whether to order continuation of hydration and releated treatment for a patient in a minimally conscious state.
Held: ‘I am sure that if Mr Briggs had been sitting in my chair and heard all the evidence and argument he would, in exercise of his right of self-determination, not have consented to further CANH treatment that his best interests are best promoted by the court not giving that consent on his behalf.
This means that the court is doing on behalf of Mr Briggs what he would have wanted and done for himself in what he thought was his own best interests if he was able to do so.’

Judges:

Charles J

Citations:

[2016] EWCOP 53

Links:

Bailii

Statutes:

Mentall Capacity Act 2005

Jurisdiction:

England and Wales

Health

Updated: 28 January 2022; Ref: scu.573097

Secretary of State for Justice v Staffordshire County Council and Another: CA 22 Dec 2016

‘The issue in this case is whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (‘the Convention’), it is necessary for a welfare order to be made by the Court of Protection (‘the CoP’) pursuant to the Mental Capacity Act 2005 (‘the MCA’) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (‘Article 5(1)’).’

Sir Terence Etherton MR, Elias, Beatson LJJ
[2016] EWCA Civ 1317
Bailii
European Convention on Human Rights 5(1)
England and Wales

Human Rights, Health

Updated: 27 January 2022; Ref: scu.572741

August Wolff and Remedia v Commission: ECFI 20 Oct 2016

ECJ (Judgment) Medicines for human use – Article 31 of Directive 2001/83 / EC – Article 116 of Directive 2001/83 – Active substance estradiol – Commission decision ordering the Member States the withdrawal and modification of national authorizations to the market for topical drugs containing estradiol 0.01% by weight – burden of proof – Proportionality – Equal treatment

ECLI:EU:T:2016:623, [2016] EUECJ T-672/14
Bailii
European

Health

Updated: 24 January 2022; Ref: scu.570365

Re R: CoP 23 Jun 2016

The court was asked in respect of R by the London Borough of Haringey : ‘(a) whether he is free to leave his current supported living placement; and, not
(b) whether he is objectively being deprived of his liberty; an if he is:
(c) whether the deprivation of his liberty is imputable to the State, so as to bring it within Article 5 of the European Convention on Human Rights.’

Lush SJ
[2016] EWCOP 33
Bailii

Health, Human Rights

Updated: 21 January 2022; Ref: scu.568153

Richards v Worcestershire County Council and Another: ChD 28 Jul 2016

Application for claim to be struck out.

Newey J
[2016] EWHC 1954 (Ch)
Bailii
Mental Health Act 1983 2 25A 117
England and Wales
Citing:
Cited – Mwanza, Regina (on The Application of) v London Borough of Greenwich and Another Admn 15-Jun-2010
The claimant had been discharged from inpatient treatment under the 1983 Act, and now sought to oblige the respondent local authorities to provide the assistance he needed. . .
Cited – Clunis (By his Next Friend Prince) v Camden and Islington Health Authority CA 5-Dec-1997
The plaintiff had killed someone and, as a result, been convicted of manslaughter and ordered to be detained in a secure hospital when subject to after-care under section 117 of the 1983 Act. He sought damages from the health authority on the basis . .

Lists of cited by and citing cases may be incomplete.

Health, Local Government

Updated: 20 January 2022; Ref: scu.567847

Cambridge University Hospitals NHS Foundation Trust v BF: CoP 18 May 2016

The Court was asked two questions. First, whether BF, a 36 year old lady with a diagnosis of paranoid schizophrenia, has the capacity to consent to or to refuse medical treatment for ovarian cancer, specifically a total abdominal hysterectomy (removal of the uterus and cervix) with bilateral salpingo-oopherectomy and omentectomy (removal of the ovaries and fallopian tubes), with a possible bowel resection and colostomy, general anaesthetic, sedation and ancillary treatment? Second, if BF does not have capacity in this regard, is it in her best interests to undergo such medical intervention such that the court should so declare?

MacDonald J
[2016] EWCOP 26
Bailii
England and Wales

Health

Updated: 16 January 2022; Ref: scu.564685

South Staffordshire and Shropshire Healthcare NHS Foundation Trust and Another v The Hospital Managers of St George’s Hospital and Another: Admn 20 May 2016

Application for judicial review of a decision by an independent panel (‘the Panel’) on 12 April 2016 to discharge the Interested Party, AU, from detention under the Mental Health Act 1983

Cranston J
[2016] EWHC 1196 (Admin)
Bailii
Mental Health Act 1983

Health

Updated: 16 January 2022; Ref: scu.564655

NHS Commissioning Board (NHS England) (Health (NHS)): ICO 26 May 2015

ICO The complainant has requested information relating to the number of hip replacements done by individual surgeons and the types of prostheses used. The Commissioner’s decision is that NHS England has correctly withheld the names of the surgeons linked to their performance data by virtue of section 40(2). The complainant also disputed whether all the information had been correctly identified and all the links to where this information could be found provided to him. The Commissioner is satisfied that NHS England did correctly apply section 21 and that no further information is held that falls within the scope of the request other than that withheld under section 40. The Commissioner does not require the public authority to take any steps as a result of this decision notice.
FOI 21: Not upheld FOI 40: Not upheld

[2015] UKICO FS50563209
Bailii
Freedom of Information Act 2000
England and Wales

Information, Health

Updated: 06 January 2022; Ref: scu.555416

NHS Commissioning Board (NHS England) (Health (NHS)): ICO 5 Mar 2015

ICO The complainant has requested information regarding metal on metal (MoM) hip replacements and whether they were still being used within the NHS following press reports that their use had been stopped. NHS England originally said that it did hold information relevant to his request and attempted to explain the position in respect of MoM hip replacements. It also directed the complainant to another body which it believed held information relevant to his request. At the internal review stage NHS England changed its position and now said that it did not hold the requested information. The Commissioner’s decision is that NHS England does not hold any specific record of whether the use of such implants had been banned. The Commissioner does not require the public authority to take any further action in this matter
FOI 1: Not upheld

[2015] UKICO FS50553593
Bailii
Freedom of Information Act 2000
England and Wales

Information, Health

Updated: 06 January 2022; Ref: scu.555231

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 locked-in syndrome following a stroke. The second applicant was paralysed following a car accident. His condition is irreversible. Both men wish/ed to end their lives but are/were unable to commit suicide without assistance. They unsuccessfully challenged the statutory ban on assisted suicide and the law on murder, which did not recognise voluntary euthanasia as a defence, before the domestic courts. The Supreme Court found, in particular, that such a sensitive issue was for Parliament to resolve.
Law – Article 8
(a) First applicant: In order for the right to respect for private life to be properly secured at domestic level, individuals had to be able to seek to rely on arguments derived from Article 8 in domestic proceedings and to have those arguments considered and, where appropriate, taken into account in the rulings of the domestic courts. The Court’s more recent case-law had often tended to view this ancillary aspect of private-life protection as arising under the so-called procedural aspect of Article 8 itself (see, for example, Koch v. Germany, 497/09, 19 July 2012, Information Note 154; and McCann v. the United Kingdom, 19009/04, 13 May 2008, Information Note 108).
It was well established in the Court’s case-law that Article 13 does not go so far as to guarantee a remedy allowing primary legislation to be challenged before a national authority on the ground of being contrary to the Convention. Where, as here, the case concerned a challenge to primary legislation, rather than, as in Koch and McCann, an individual measure of implementation, it would therefore be anomalous if the procedural aspect of Article 8 extended further than Article 13 so as to require the possibility of challenging primary legislation in cases giving rise to private-life concerns.
However, the Convention was part of the domestic law of the United Kingdom and a procedure existed, under the Human Rights Act, permitting primary legislation to be challenged on the basis of its alleged incompatibility with Article 8. It could therefore be argued that where the State had chosen to provide a remedy in respect of primary legislation, such remedy was subject to the procedural requirements which generally arose under Article 8, and in particular to the requirement set out in Koch as to the need for an examination of the merits of the claim. For the Court, however, there was a fundamental problem with extending the procedural protections of Article 8 in that way. The problem arose from the application of the margin of appreciation available to member States in cases concerning challenges to primary legislation under Article 8. The Contracting States were generally free to determine which of the three branches of government should be responsible for taking policy and legislative decisions which fell within their margin of appreciation and it was not for the European Court to involve itself in their internal constitutional arrangements. However, when it concluded in any given case that an impugned legislative provision fell within the margin of appreciation, it would often be the case that the Court was, essentially, referring to Parliament’s discretion to legislate as it saw fit in that particular area. Thus, in Pretty v. the United Kingdom (2346/02, 29 April 2002) the Court had held that it was for States to assess the risk and likely incidence of abuse if the general prohibition on assisted suicide were to be relaxed or exceptions created. In the context of the United Kingdom, that assessment had been made by Parliament in enacting the relevant provision of the 1961 Suicide Act, a provision that had been reconsidered several times by Parliament in recent years, having been re-enacted in 2009. If the domestic courts were to be required to give a judgment on the merits of such a complaint this could have the effect of forcing upon them an institutional role not envisaged by the domestic constitutional order. Further, it would be odd to deny domestic courts charged with examining the compatibility of primary legislation with the Convention the possibility of concluding, like the Court, that Parliament was best placed to take a decision on the issue in question in light of the sensitive issues, notably ethical, philosophical and social, which arose. For those reasons, the Court did not consider it appropriate to extend Article 8 so as to impose on the Contracting States a procedural obligation to make available a remedy requiring the courts to decide on the merits of a claim such as the one made in the instant case.
In any event, the majority of the Supreme Court judges had dealt with the substance of the first applicant’s claim. They had concluded that she had failed to show that developments since Pretty meant that the ban could no longer be considered a proportionate interference with Article 8 rights. The fact that in making their assessment they had attached great significance to the views of Parliament did not mean that they had failed to carry out any balancing exercise. Rather, they had chosen – as they were entitled to do in light of the sensitive issue at stake and the absence of any consensus among Contracting States – to conclude that the views of Parliament weighed heavily in the balance.
Conclusion: inadmissible (manifestly ill-founded).
(b) Second applicant: Before the Court of Appeal, challenges had been made to both the prohibition on assisted suicide and the law on murder, which made no exception for voluntary euthanasia. However, before the Supreme Court the second applicant had only pursued his complaint about the ban on assisted suicide and not his argument that there should be a judicial procedure to authorise voluntary euthanasia in certain circumstances. It could not be assumed that the Supreme Court would have disposed of the argument concerning voluntary euthanasia in the same way as it disposed of the claim in respect of the prohibition of assisted suicide.
Conclusion: inadmissible (failure to exhaust domestic remedies).

2478/15; 1787/15 – Legal Summary, [2015] ECHR 783
Bailii
European Convention on Human Rights 8-1
Human Rights
Citing:
At HL – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .

Cited by:
See Also – 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. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health, Crime

Updated: 04 January 2022; Ref: scu.552391

London Borough of Southwark v P and Others: CoP 20 Apr 2015

Application made both in the Court of Protection and for a Forced Marriage Protection order in the High Court (Family Division). It concerns P who was born on a date in 1986 and is aged 28 years. There is a dispute as to the extent to which he lacks capacity to litigate and capacity to consent to marriage or sexual relations.

Moor J
[2015] EWCOP 40
Bailii
England and Wales

Family, Health

Updated: 03 January 2022; Ref: scu.551311

Re A: CoP 7 Jul 2015

Application by a professional deputy for an order authorising him to apply approximately 17,000 pounds a year from A’s damages award towards the payment of her brother’s school fees.

[2015] EWCOP 46
Bailii
England and Wales

Health

Updated: 03 January 2022; Ref: scu.551315

S v Airedale National Health Service Trust: QBD 22 Aug 2002

The patient had been detained, and then secluded within the mental hospital for 11 days. He claimed to have been subjected to inhuman treatment, and false imprisonment.
Held: His claim failed. The policy allowed the authority to confine him to a locked room under supervision for the protection of others. The fact of seclusion did not add to the fact that he was already and lawfully confined. A self evidently necessary power could be read into the 1983 Act to permit seclusion. Nevertheless a high degree of scrutiny was appropriate to prevent abuse.
Mr Justice Stanley Burnton considered when it might be proper to hear oral evidence on an application for judicial review: ‘It is a convention of our litigation that at trial in general the evidence of a witness is accepted unless he is cross-examined and is thus given the opportunity to rebut the allegations made against him. There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness’s testimony is manifestly wrong), but that is not the present case. The general rule applies as much in judicial review proceedings as in other litigation, although in judicial review proceedings it is relatively unusual for there to be a conflict of testimony and even more unusual for there to be cross-examination of witnesses.’

Mr Justice Stanley Burnton
[2003] Lloyd’s Rep Med 21, [2003] MHLR 63, Times 05-Sep-2002, [2002] EWHC 1780 (Admin)
Bailii
Mental Health Act 1983, European Convention on Human Rights 3 5
England and Wales
Citing:
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – Regina v Ashworth Hospital Authority, Ex parte Munjaz (No 2) Admn 5-Jul-2002
The court dismissed the claimant’s complaint that the seclusion policies operated at Ashworth Special Hospital infringed his human rights. The Special Hospitals operated policies for seclusion which differed from the Code of Practice laid down under . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Regina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .

Cited by:
Appeal from – Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
Cited – Shoesmith, Regina (on The Application of) v Ofsted and Others Admn 23-Apr-2010
The claimant challenged her dismissal as Director of children’s services at the respondent council following an adverse report into the Baby P death identified her department as being responsible. She said that the first defendant had allowed its . .

Lists of cited by and citing cases may be incomplete.

Health, Torts – Other, Judicial Review

Updated: 02 January 2022; Ref: scu.174790

Re X (Court of Protection Practice): CA 16 Jun 2015

This appeal concerns the practice and procedure to be adopted in applications to the Court of Protection in deprivation of liberty cases.

[2015] EWCA Civ 599, [2016] 1 FCR 65, [2015] COPLR 582, [2016] 1 WLR 227, [2015] WLR(D) 257, [2016] 1 All ER 533
Bailii
England and Wales

Health, Human Rights, Litigation Practice

Updated: 01 January 2022; Ref: scu.548999

Re CJ: CoP 25 Mar 2015

Reconsideration of a decision made on the papers: (a) revoking the respondent’s appointment as his partner’s deputy for property and affairs; and (b) inviting a panel deputy to apply to be appointed as deputy in his place.

Lush SJ
[2015] EWCOP 21
Bailii
England and Wales

Agency, Health

Updated: 29 December 2021; Ref: scu.544724

The Secretary of State for Justice v RB and Another: CA 20 Dec 2011

The court considered and rejected the possibility of the First Tier Tribunal making orders under the 2005 Act which would have the effect of depriving a patient of his liberty. The respondent, now aged 73, suffered a persistent delusional condition and was a ‘restricted patient’.

Maurice Kay LJ VP, Arden, Moses LJJ
[2011] EWCA Civ 1608, (2012) 124 BMLR 13, [2012] 1 WLR 2043, [2012] AACR 31, [2012] MHLR 131, [2011] WLR (D) 379
Bailii, WLRD
Mental Health Act 1983
England and Wales
Cited by:
Cited – Secretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patient’s responsible clinician (may . .

Lists of cited by and citing cases may be incomplete.

Health, Criminal Sentencing

Updated: 24 December 2021; Ref: scu.450118

The Secretary of State for Justice v MM: CA 29 Mar 2017

Power of FTT to deprive patient of liberty

Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
Held: The orders made by the UT were set aside. There is no ‘umbrella’ power that can be exercised by the tribunal to authorise a patient’s deprivation of liberty outside hospital. It is accordingly inappropriate for a tribunal to do so, whether by direct or indirect means (for example, by the use of declarations to provide for an asserted lacuna in the statutory scheme). There is no lacuna in the scheme. However practicable and effective it may be to provide for a tribunal to have such a power, for example to improve access to justice to a specialist and procedurally appropriate adjudication, Parliament has not provided for the same.

Sir James Munby, President, Lady Justice Gloster, Vice-President, and Sir Ernest Ryder, Senior President
[2017] EWCA Civ 194, [2017] WLR(D) 235, [2017] 1 WLR 4681
Bailii, WLRD
Mental Health Act 1983
England and Wales
Citing:
Cited – Secretary of State for Justice v KC and C Partnership NHS Foundation Trust UTAA 2-Jul-2015
Mental Health : All
The local authority had sought an order under the 2005 Act seeking a personal welfare order on the basis that it would be in KC’s best interests for him to move to a proposed placement (the Placement) on the terms of a care . .
Cited – P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Appeal from – MM v WL Clinic and Another UTAA 23-Nov-2015
Mental Health : All – whether for the purposes of Article 5 a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a . .
Cited – Secretary of State for the Home Department, Regina (on the Application of) v Mental Health Review Tribunal Admn 20-May-2002
The Court considered the meaning of ‘discharge’ from a mental health hospital. Elias J held that it meant ‘discharge from detention in hospital’, so that there could be a discharge on condition of residence in another hospital: but he also held that . .

Cited by:
Appeal from – Secretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .
Appeal from – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patient’s responsible clinician (may . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Health, Human Rights

Updated: 24 December 2021; Ref: scu.581298

Re IJ (A Child) (Foreign Surrogacy Agreement Parental Order): FD 19 Apr 2011

The court gave reasons for making a parental order under the 2008 Act in favour of the applicants where a child had been born under surrogacy arrangements which were lawful in the Ukraine where he was born, but would have been unlawful here because of payments going beyond reasonable expenses.
Held: The order was made because it was clearly in the best interests of the child to do so. As to the making of an order under the Regulations as to the acquisition of British nationality under the Regulations, the practice has been first to give notice to the Home Office of the application. It need not always be the practice in these applications, because by necessity the Border Agency would normally have had some involvement already.

Hedley J
[2011] EWHC 921 (Fam), [2011] Fam Law 695, [2011] 2 FLR 646
Bailii
Human Fertilisation and Embryology Act 2008 54, Human Fertilisation and Embryology (Parental Orders) Regulations 2010
England and Wales
Citing:
Cited – In re X and Y (Foreign Surrogacy) FD 9-Dec-2008
The court considered the approval required for an order under the 2002 Act.
Held: Welfare considerations were important but not paramount: ‘Given the permanent nature of the order under s.30, it seems reasonable that the court should adopt the . .
Cited – Re W (A Minor) (Adoption: Non-Patrial) CA 1986
W was born in China to Chinese parents. His aunt came to Britain and acquired citizenship. He came to live with her while studying, and she applied to adopt him. The judge refused saying that the primary intention was to obtain citizenship.
Cited – In re L (A Minor) (Commercial Surrogacy) FD 8-Dec-2010
The child had been born in Illinois as a result of a commercial surrogacy arrangement which would have been unlawful here. The parents applied for a parental order under the 2008 Act.
Held: The order was made, but in doing so he court had to . .

Cited by:
Cited – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .

Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 12 December 2021; Ref: scu.439589

In re P: CoP 11 Dec 2013

Application made by an NHS Trust for the benefit of a thirty-six year old woman who is currently heavily pregnant and about to deliver her fourth child concerning the situation that might arise if Mrs. P (as I will call her) should get into difficulties during the course of her labour, which is expected to be induced shortly after this hearing. It is said that because of mental health difficulties Mrs. P is unable to make decisions about her own medical treatment at the moment and that this would particularly be the case during the course of labour if it ran into difficulties.

Peter Jackson J
[2013] EWCOP 4581, [2013] EWHC 4581 (COP)
Bailii
England and Wales

Health

Updated: 03 December 2021; Ref: scu.524717

A Local Authority v TZ (No 2): CoP 1 Apr 2014

The court had already decided that the subject of the case had capacity for purposes of consenting to and engaging in sexual relations. The Court was now asked as to his capacity (1) to make decisions as to his contact with other people, and (2) to make decisions as to his care needs.

Baker J
[2014] EWHC 973 (COP), [2014] EWCOP 973
Bailii, Bailii
Mental Capacity Act 2005
England and Wales

Health

Updated: 02 December 2021; Ref: scu.523649

Aster Healthcare Ltd v Shafi (Estate of): QBD 24 Jan 2014

The defendant executor appealed from summary judgment in favour of the claimant in respect of outstanding care home fees.

Andrews DBE J
[2014] EWHC 77 (QB), [2014] PTSR 888, [2014] WLR(D) 42
Bailii, WLRD
Mental Capacity Act 2005, National Assistance Act 1948, National Health Service and Community Care Act 1990
England and Wales

Contract, Health, Local Government

Updated: 29 November 2021; Ref: scu.520897

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.
Held: Article 5(1)(a) is concerned with the question whether the detention is permissible. Its object and purpose is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation. The Court defined the conditions to be met before the detention of a person may be justified on grounds of mental illness: ‘In the Court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority – that is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.’ but ‘it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation . . . Mental illness may entail restricting or modifying the manner of the exercise of such a right, but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.’

[1979] 2 EHRR 387, [1979] ECHR 4, 6301/73
Bailii
European Convention on Human Rights 5 6 8
Human Rights
Cited by:
Cited – A v The Scottish Ministers PC 15-Oct-2001
(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate . .
Cited – Giles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
Cited – Regina v Secretary of State for the Home Department and Another ex parte IH HL 13-Nov-2003
The appellant had been found unfit to plead after assaulting his son, and he had been detained under the 1964 Act. He alleged his detention was in breach of his right to a fair trial. His release had been authorised subject to the appointment of a . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
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 – Ward v Commissioner of Police for the Metropolis and others HL 5-May-2005
The claimant had been taken under warrant to a mental hospital, but was found not to be suffering any mental illness. She complained that the arrest was unlawful, since the police officer had not been accompanied by the people named on the warrant. . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – MH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
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 . .
See Also – Winterwerp v The Netherlands ECHR 27-Nov-1981
Hudoc Judgment (Just satisfaction) Struck out of the list (friendly settlement) . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – 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 – SK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – G v E and Others CA 4-May-2010
E, now aged 19, suffered a genetic condition leading to severe learning disability, and a lack of mental capacity. After being in the care of F, but displaying potentially violent behaviours, he was removed against his and F’s will to the care of . .
Cited – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Cited – Sherry v The Queen PC 4-Mar-2013
Discretion as to credit for remand time
(Guernsey) In 1980 the appellant had been sentenced to three months imprisonment. He had spent 10 days on remand, but no allowance was given for that time. He gave notice of appeal, but after being released on open remand, he failed to appear at his . .
Cited – In re X and Others (Deprivation of Liberty) CoP 7-Aug-2014
inreX_dolCoP1408
The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that . .
Cited – Modaresi, Regina (on The Application of) v Secretary of State for Health SC 24-Jul-2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental . .
Cited – The Health Service Executive of Ireland v PA and Others CoP 3-Jun-2015
hsen_paCoP201506
The HSE sought orders under s.63 of and Schedule 3 to the 2005 Act recognising and enforcing orders by the Irish High Court for the detention of three young persons (‘PA’, ‘PB’, and ‘PC’) at a special unit known in Northampton.
Held: On an . .
Cited – Secretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Leading Case

Updated: 29 November 2021; Ref: scu.164887

Re L (a child) (Medical Treatment: Benefit): FD 1 Nov 2004

(Date)

Dame Elizabeth Butler Sloss
[2004] EWHC 2713 (Fam), [2005] 1 FLR 491
England and Wales
Citing:
Approved – Portsmouth NHS Trust v Wyatt and others FD 7-Oct-2004
Charlotte Wyatt was born prematurely, and depended for day to day her life on medical support. Her doctors asked to be permitted not to resuscitate her again if she needed it. Her parents asked that she be given whatever chance was available for her . .

Cited by:
Cited – Wyatt v Portsmouth NHS Trust and Another FD 21-Apr-2005
Charlotte Wyatt had been born very premature and so severely disabled that her doctors sought and obtained an order that she should not be revived if she died. She had survived several months longer than expected and her parents had noticed . .
Cited – Wyatt and Another v Portsmouth Hospital NHS and Another CA 12-Oct-2005
The appellants’ daughter had been born with very severe disabilities. Her doctors obtained an order allowing them a discretion not to ventilate her to keep her alive if necessary. She had improved, but the family now sought leave to appeal an order . .

Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 15 November 2021; Ref: scu.226136

Radu v Germany (Legal Summary): ECHR 16 May 2013

ECHR Article 5-1-a
After conviction
Applicant’s continued placement in psychiatric hospital after expiry of his prison term: no violation
Facts – In 1995 the applicant was convicted of homicide and sentenced to eight and a half years’ imprisonment and placement in a psychiatric hospital on grounds of diminished responsibility. In making the order for the applicant’s placement, the sentencing court relied on expert evidence indicating that the applicant suffered from a serious personality disorder characterised by violent outbursts and diminished capability to control his acts and was likely to kill again if he found himself in a similar conflict situation. No appeal was lodged against that order, which therefore became final. After spending four years in prison, the applicant was transferred to a psychiatric hospital in 1998. However, in subsequent proceedings for review of the applicant’s detention, the medical director of the hospital concluded that the applicant’s placement was wrongful as, although he had an ‘accentuated personality’ and was very likely to reoffend if released, the applicant was not in fact suffering from a persisting pathological mental disorder and lacked the motivation to complete a course of therapy. The court dealing with the execution of sentences then ordered his return to prison, where he served the remainder of his prison sentence. In the meantime, however, the court of appeal upheld a decision by the regional court not to declare the applicant’s placement in a psychiatric hospital terminated, despite further expert psychiatric evidence confirming the medical director’s view that the applicant had not been suffering from a serious personality disorder diminishing his criminal responsibility at the time the offence was committed. The court of appeal considered that even though the sentencing court’s order for the applicant’s placement in a psychiatric hospital was the result of an erroneous legal qualification, that qualification could not be corrected by the courts dealing with the execution of sentences as to do so would violate the constitutional principle of the finality of judicial decisions. Accordingly, after completing his prison sentence in October 2003 the applicant was transferred to a psychiatric hospital. The domestic courts came to a like conclusion on a further review of the applicant’s psychiatric placement in 2006 and the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.
In his application to the European Court, the applicant complained that his continued confinement in a psychiatric hospital had violated his right to liberty. His detention had been prolonged despite the fact that it had been established that he did not suffer and had in fact never suffered from a condition diminishing or excluding his criminal responsibility.
Law – Article 5-1 (a): The Court firstly had to establish whether there was a sufficient causal connection between the applicant’s conviction by the sentencing court in 1995 and his continuing deprivation of liberty from 2006 onwards. In that connection, it noted that both the sentencing court and the courts dealing with the execution of sentences agreed that the applicant suffered from a personality disorder and was likely to commit further offences if released. Further, even though they disagreed on the legal qualification of that disorder, the courts dealing with the execution of sentences had accepted that the classification by the sentencing court had acquired legal force and could not be changed. In that, connection, the Court noted that a court’s reliance on the findings in a final judgment of a criminal court to justify a person’s detention, even if such findings were or may have been wrong, did not, as a rule, raise an issue under Article 5-1: a flawed conviction would render a detention unlawful only if the conviction were the result of a flagrant denial of justice, which was not the case here. Given that the courts dealing with the execution of sentences had pursued the aims of protecting the public and providing treatment for the applicant’s personality disorder, the Court was satisfied that their decision not to release the applicant had been based on grounds consistent with the aims pursued by the sentencing court when ordering his detention in a psychiatric hospital. There therefore remained a sufficient causal connection for the purposes of sub-paragraph (a) of Article 5-1 between the applicant’s conviction in 1995 and his continuing detention in a psychiatric hospital. Such continuation of the applicant’s detention had a legal basis in domestic law, which under the domestic jurisprudence had been foreseeable in his case. Furthermore, the domestic courts had given detailed reasons for their decisions and their interpretation of the applicable provision of domestic law was aimed at protecting the finality of the sentencing court’s judgment, which could not be seen as contravening as such the purpose of Article 5. Finally, the applicant had not been arbitrarily deprived of his liberty since the domestic courts’ application of the domestic law did not render his release impossible as soon as it could be concluded that he would not commit any further unlawful acts. As the applicant had not yet met that condition, the execution of the detention order against him had not been suspended. Therefore, the order for the applicant’s continued confinement in a psychiatric hospital was ‘lawful’ and ‘in accordance with a procedure prescribed by law’, as required by Article 5-1.
Conclusion: no violation (five votes to two).

20084/07 – Legal Summary, [2013] ECHR 604
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Radu v Germany ECHR 3-Jul-2012
. .

Cited by:
Summary – Radu v Germany ECHR 16-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Health

Updated: 15 November 2021; Ref: scu.512073

CM v The Executor of The Estate of EJ and Others: FD 14 Jun 2013

CM, a medical doctor stoppd in the street and atended a woman who had fallen from a building, and later died. In caring for her, she had contact with the lady’s blood. Her own hands had broken skin, anf being afraid of blood borne disease sought an order for blood to be taken for analysis.
Held: Granted

Cobb J
[2013] EWHC 1680 (Fam)
Bailii
Human Tissue Act 2004
England and Wales

Coroners, Health

Updated: 14 November 2021; Ref: scu.510875

Evans v United Kingdom: ECHR 7 Mar 2006

The claimant had entered into fertilisation treatment with her boyfriend. They both signed an agreement under which the fertilised sperm were only later to be implanted with the agreement of both. The couple separated, and the potential father withdrew his consent to the treatment, and the woman was refused implantation. She complained of interference with her article 8 rights.
Held: Her claim failed. The Court will generally allow the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights.
The 1990 Act had been passed after detailed consideration and consultation. It had been explained to the applicant that the completion of the treatment depended upon the continuing consent of her partner, and she had signed to agree to this. An embryo did not itself have a right to life. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted.

C.L. Rozakis, P
Times 17-Mar-2006, 6339/05, [2006] ECHR 200, [2007] ECHR 264, [2007] ECHR 265, (2008) 46 EHRR 34, [2007] 2 FCR 5, [2007] 1 FLR 1990, (2007) 95 BMLR 107, [2007] Fam Law 588, 22 BHRC 190
Worldlii, Bailii, Bailii, Bailii PR
European Convention on Human Rights 8, Human Fertilisation and Embryology Act 1990
Human Rights
Cited by:
See Also – Evans v The United Kingdom ECHR 22-Nov-2006
. .
See Also – Evans v United Kingdom ECHR 10-Apr-2007
The claimant said that the English law on assisted conception infringed her right to family life. She had began treatment with her partner, and was given a cycle of in-vitro fertilisation before her cancerous condition required removal of her . .
Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Health

Leading Case

Updated: 12 November 2021; Ref: scu.239579

Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland: ECJ 23 Dec 2015

ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative restrictions – Measures having equivalent effect – Minimum price of alcoholic drinks calculated according to the alcoholic strength of the product – Justification – Article 36 TFEU – Protection of human life and health – Assessment by the national court
‘I consider that the existence of a CMO covering the wine sector does not prevent the national authorities from taking action in the exercise of their competence in order to adopt measures to protect health and, in particular, to combat alcohol abuse. However, where the national measure constitutes a breach of the principle of the free formation of selling prices that constitutes a component of the single CMO Regulation, the principle of proportionality requires that the national measure must actually meet the objective of the protection of human health and must not go beyond what is necessary in order to attain that objective.
As the commission suggests, I consider that the examination of the proportionality of the measure must be undertaken in the context of the analysis that must be carried out by reference to article 36 TFEU.
Consequently, I propose that the answer to the first question should be that the single CMO Regulation must be interpreted as meaning that it does not preclude national rules, such as those at issue, which prescribe a minimum retail price for wines according to the quantity of alcohol in the product sold, provided that those rules are justified by the objectives of the protection of human health, and in particular the objective of combating alcohol abuse, and do not go beyond what is necessary in order to achieve that objective.’
‘A barrier to the free movement of goods may be justified on one of the public interest grounds set out in article 36 TFEU or in order to meet overriding requirements. In either case, the restrictions imposed by the member states must none the less satisfy the conditions laid down in the court’s case law as regards their proportionality. In that regard, in order for national rules to comply with the principle of proportionality, it is necessary to ascertain not only whether the means which they implement are appropriate to ensure attainment of the objective pursued, but also that those means do not go beyond what is necessary to attain that objective: Berlington Hungary Tanacsado es Szolgaltato kft v Magyar Allam (Case C-98/14) [2015] 3 CMLR 45, para 64.
Although the words generally used by the court seem most frequently to result in only two different stages of the control of proportionality being distinguished, the intellectual exercise followed in order to determine whether a national measure is proportionate is generally broken down into three successive stages.
The first stage, corresponding to the test of suitability or appropriateness, consists in ascertaining that the act adopted is suitable for attaining the aim sought.
The second stage, relating to the test of necessity, sometimes also known as the ‘minimum interference test’, entails a comparison between the national measure at issue and the alternative solutions that would allow the same objective as that pursued by the national measure to be attained but would impose fewer restrictions on trade.
The third stage, corresponding to the test of proportionality in the strict sense, assumes the balancing of the interests involved. More precisely, it consists in comparing the extent of the interference which the national measure causes to the freedom under consideration and the contribution which that measure could secure for the protection of the objective pursued.’

R. Silva de Lapuerta, P
ECLI:EU:C:2015:845, [2015] EUECJ C-333/14, [2016] 1 WLR 2283, [2015] WLR(D) 544
Bailii, WLRD
Regulation (EU) No 1308/2013, TFEU 34
European
Citing:
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See Also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
Cited – Commission v Italy (Free Movement Of Goods) ECJ 10-Feb-2009
ecJ Failure of a Member State to fulfil obligations Article 28 EC Concept of ‘measures having equivalent effect to quantitative restrictions on imports’ Prohibition on mopeds, motorcycles, motor tricycles and . .

Cited by:
At ECJ – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
At ECJ – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .

Lists of cited by and citing cases may be incomplete.

Commercial, Health

Updated: 10 November 2021; Ref: scu.565749

Regina v Manchester City Council, ex parte Stennett etc: HL 25 Jul 2002

The applicants were former mental patients who had been admitted to hospital compulsorily under section 3. On their release they were to be given support under section 117. The authorities sought to charge for these services, and appealed a decision that the services should be free.
Held: Section 117 imposed a clear and free standing duty to provide support. The section was not a mere request to the authority to provide services under other provisions. Such patients might have greater needs and also have imposed on them restrictions. It was not inappropriate that support should be free.

Lord Slynn of Hadley Lord Mackay of Clashfern Lord Steyn Lord Hutton Lord Millett
Times 29-Aug-2002, Gazette 17-Oct-2002, [2002] UKHL 34, [2002] BLGR 557, (2002) 5 CCL Rep 500, [2002] 4 All ER 124, [2002] 3 WLR 584, (2002) 68 BMLR 247, [2002] 2 AC 1127
House of Lords, Bailii
Mental Health Act 1983 3 117
England and Wales
Citing:
Appeal From – Regina v Richmond London Borough Council, Ex Parte Watson; Regina v Redcar and Cleveland Borough Council, Ex Parte Armstrong etc Admn 15-Oct-1999
. .

Cited by:
Cited – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
k_centralQBD2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
Cited – Stojak, Regina (on The Application of) v Sheffield City Council Admn 22-Dec-2009
The deceased had been detained as a mental patient and supported after her release, by her family financially. Her representatives now said that the respondent had failed in its obligation to provide support for no charge. The authority said that . .

Lists of cited by and citing cases may be incomplete.

Health, Benefits, Local Government

Leading Case

Updated: 10 November 2021; Ref: scu.174394

Z, Re (Recognition of Foreign Order): FD 8 Apr 2016

The court considered the exercise of the court’s powers under the inherent jurisdiction to recognise and enforce orders concerning the medical treatment of children made by courts of another member state of the European Union.
Held: The orders made by the Irish court were to stand as orders of the High Court of England and Wales

Baker J
[2016] EWHC 784 (Fam), [2016] WLR(D) 178, [2016] 3 WLR 791, [2016] Fam 375, [2016] Fam Law 684, [2017] 1 FLR 1236
Bailii, WLRD
England and Wales

Children, European, Health

Updated: 10 November 2021; Ref: scu.562141

National Aids Trust v National Health Service Commissioning Board (NHS England): Admn 2 Aug 2016

NHS to make drug available

The claimant charity said that drugs (PrEP) prophylactic for AIDS / HIV should be made available by the defendant and through the NHS. The respndent said that the responsibility for preventative medicine for sexual health lay with local authorities.
Held: The claim succeeded. NHS England had misdirected itself in law when it concluded that it had no power to commission PrEP: ‘when the NHSA 2006 is considered both as a whole but also by reference to its specific provisions it has the following broad characteristics and purposes; First, it imposes broad duties and powers on NHS England to secure the provision of health services to the entirety of the population and nation wide; second, the duty includes all aspects of preventative medicine; third it exercises its powers and duties concurrently with other providers of services which includes the Secretary of State, CCGs and local authorities; fourth these services are to be provided comprehensively and in an integrated manner; fifth, the service is to be provided efficiently and so as to avoid inequalities of provision or outcome.’

Green J
[2016] EWHC 2005 (Admin), CO/2979/2016
Bailii, Judiciary
National Health Service Act 2006, National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, Local Authorities (Public Health Functions etc.) Regulations 2013
England and Wales
Citing:
Cited – Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs CA 1-Jul-2015
The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive . .
Cited – UBS Ag and Another v Revenue and Customs SC 9-Mar-2016
UBS AG devised an employee bonus scheme to take advantage of the provisions of Chapter 2 of the 2003 Act, with the sole purpose other than tax avoidance, and such consequential advantages as would flow from tax avoidance. Several pre-ordained steps . .
Cited – Harvey, Regina v SC 16-Dec-2015
Police had discovered quantities of stolen goods at the appellant’s business premises. He was convicted of receiving stolen goods, and confiscation order made. He now appealed from the inclusion in that order of sums of VAT which had already been . .
Cited – Solar Century Holdings Ltd and Others v Secretary of State for Energy and Climate Change Admn 7-Nov-2014
The court considered the admissibility of pre-legislative material as evidence to support the interpretation of a statute. . .
Mentioned – Solar Century Holdings Ltd and Others v Secretary of State for Energy and Climate Change CA 1-Mar-2016
This judicial review appeal concerns the legality of decisions by the respondent, the Secretary of State for Energy and Climate Change (‘the SoS’), to bring to a premature close, subject to certain periods of grace, a statutory scheme supporting the . .
Cited – Attorney-General v Mersey Railway Co HL 1906
The power to make by-laws encompasses not only a company’s principle activity, but also all incidental and ancillary activities. The incidental power cannot be used to expand the company’s activities, in this case by extending its business by . .
Cited – Hazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
Cited – Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs CA 1-Jul-2015
The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive . .

Lists of cited by and citing cases may be incomplete.

Health, Local Government, News

Updated: 10 November 2021; Ref: scu.567876

Sheffield City Council v E; Re E (An Alleged Patient): FD 2 Dec 2004

The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered disabillities including functioning at the equivalent age of 13. The man had a serious record of sexual violence. Nevertheless the issue on whether she could marry was only whether she understood the marriage contract and its nature and duties. Whether others would make the same choice in wisdom was not the issue. The doctrine of necessity has no place in relation to marriage, which depended exclusively upon consent. A persons’ best interests were not at issue. Questions of capacity are always issue specific.
Munby J said: ‘An adult either has capacity [in relation to a particular matter] or he does not. If he does, then, at least in relation to that issue, the Family Division cannot exercise its inherent declaratory jurisdiction, because it is fundamental that this jurisdiction can be exercised only in relation to those who lack the relevant capacity.’ and ‘There is, so far as I can see, no hint in any of the cases on the point – and I have gone through them all – that the question of capacity to marry has ever been considered by reference to a person’s ability to understand or evaluate the characteristics of some particular spouse or intended spouse. In all the cases, as we have seen, the question has always been formulated in a general and non-specific form: Is there capacity to understand the nature of the contract of marriage?’ and ‘In relation to her marriage the only question for the court is whether E has capacity to marry. The court is not concerned – has no jurisdiction – to consider whether it is in E’s best interests to marry or to marry S. The court is concerned with her capacity to marry, not with the wisdom of her marriage in general or her marriage to S in particular.’

Munby J
Times 20-Jan-2005, [2005] 2 WLR 953, [2004] EWHC 2808 (Fam), [2005] 1 FLR 965
Bailii
England and Wales
Citing:
Cited – In re Estate of Park (deceased), Park v Park CA 2-Jan-1953
The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was . .
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 – Durham v Durham, Hunter v Edney (Orse Hunter), Cannon v Smalley (Orse Cannon) 1885
The burden of establishing that a party to a marriage had lacked capacity through insanity, lay on the party making the assertion. The court is to decide whether the respondent was capable of understanding the nature of the contract, and the duties . .
Distinguished – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – In Re S (Adult Patient: Sterilisation) CA 26-May-2000
The court should decide what is in the best interests of a patient where she was unable to give consent herself. The test of whether what was proposed was within the range of what reasonable and competent medical practitioners might propose, got the . .

Cited by:
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – D Borough Council v AB CoP 28-Jan-2011
The court was asked whether A, an adult male with learning disability had capacity to consent to sexual relations, and in particular what test was to be applied. . .
Cited – PC and Another v City of York Council CA 1-May-2013
It had been decided that PC, a 43 year old woman, had capacity to marry, but the LA now argued that she did not have the capacity to decide to live with her partner, a man who had old convictions for serious sexual assault.
Held: Decisions as . .
Cited – AMDC v AG and Another CoP 18-Nov-2020
Guidance for Expert Witnesses on Capacity
The court was asked as to the preparation and use of expert reports as to the capacity of a patient litigant.
Held: Poole J discussed what was need of expert witness in such cases: ‘it will benefit the court if the expert bears in mind the . .
Applied – PH v A Local Authority CoP 30-Jun-2011
The Court was asked whether PH, a forty-nine year old man, suffering from Huntingdon’s Disease had capacity to make decisions about his residence, care and treatment. . .

Lists of cited by and citing cases may be incomplete.

Family, Health

Leading Case

Updated: 10 November 2021; Ref: scu.231165

The Health Service Executive of Ireland v PA and Others: CoP 3 Jun 2015

hsen_paCoP201506

The HSE sought orders under s.63 of and Schedule 3 to the 2005 Act recognising and enforcing orders by the Irish High Court for the detention of three young persons (‘PA’, ‘PB’, and ‘PC’) at a special unit known in Northampton.
Held: On an application to for confirmation of a compulsory psychiatric placement under Schedule 3 to the 2005 Act the court should itself carry out a review in oder to be satisfied that an order would comply with the Convention and so in that (i) the Winterwerp criteria were met and (ii) that the individual’ would have an effective right to regular reviews of the detention and to challenge it in court if necessary.

Baker J
[2015] EWCOP 38, [2015] WLR(D) 243
Bailii, WLRD
Mental Capacity Act 2005 63 Sch 3, European Convention on Human Rights , Hague Convention on the International Protection of Adults 2000 1 3
Citing:
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 – JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .

Lists of cited by and citing cases may be incomplete.

International, Children, Health, Human Rights

Updated: 09 November 2021; Ref: scu.548027

In re J (Enduring Power of Attorney): ChD 12 Mar 2009

(Court of Protection) The donor executed a document purporting to appoint his wife to be his attorney, with an alternative. The document was based on a published precedent. The Public Guardian (PG) thought this provision of an alternative invalid.
Held: The Act required the use of the form set out, but then allowed variations to it which did not contradict any provision of the Act, and did allow successive attorneyships. The PG said that paragraph 20 required any multiple appointment to be either joint or joint and several. Such appointments were not in fact prohibited, and would give rise to no greater complexity than might arise through the use of multiple and successive deeds which were clearly allowed. The Act should be construed so as to allow people to make the arrangements they felt suitable and without creating technical traps for them. The power was valid.

Lewison J
[2009] EWHC 436 (Ch)
Bailii
Enduring Powers of Attorney Act 1985, Enduring Powers of Attorney (Prescribed Form) Regulations 1990
England and Wales
Citing:
Cited – Scottish and Newcastle Plc v Raguz HL 29-Oct-2008
The lease had been assigned by the claimant to the defendant and on again to a tenant who became insolvent. The landlord had recovered sums said to be due from the claimant who now sought an indemnity from the defendant. The defendant said that the . .
Cited – X v Y, Z sub nom In re E (Enduring power of attorney) ChD 18-Feb-2000
The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to . .

Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 01 November 2021; Ref: scu.317986

RF v Secretary of State for Work and Pensions: Admn 21 Dec 2017

Psychlogical condition no bar to benefits claim

The claimant challenged the exclusion of psychological distress as a ground for payment of certain personal Independence Payments.
Held: The claim was allowed. This was direct discrimination which was not objectively justified.

Mostyn J
[2017] EWHC 3375 (Admin), [2017] WLR(D) 861, [2018] PTSR 1147
Bailii, WLRD
Social Security (Personal Independence Payment) (Amendment) Regulations 2017 2(4), European Convention on Human Rights 14
England and Wales

Health, Benefits, Human Rights

Updated: 01 November 2021; Ref: scu.602595

Imperial Loan Co v Stone: CA 1892

Contract without Capacity – Voidable not Void

A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict against the creditor, who appealed.
Held: A contract made by a person who lacked the capacity to make it was not void, but could be avoided by that person provided that the other party to the contract knew (or, as is now generally accepted, ought to have known) of his incapacity.
The submission that there was no authority that a man could be sued and made liable on an executory contract which he had made when of unsound mind, except in the case of a contract for necessaries was rejected. Lord Esher MR: ‘I shall not try to go through the cases bearing on the subject; but what I am about to state appears to me to be the result of all the cases. When a person enters into a contract, and afterwards alleges that he was so insane at the time that he did not know what he was doing, and proves the allegation, the contract is as binding on him in every respect, whether it is executory or executed, as if he had been sane when he made it, unless he can prove further that the person with whom he contracted knew him to be so insane as not to be capable of understanding what he was about.’
Fry LJ said: ‘It thus appears that there has been grafted on the old rule the exception that the contracts of a person who is non compos mentis may be avoided when his condition can be shown to have been known to the plaintiff. So far as I know, that is the only exception.’
Lopes LJ said: ‘In order to avoid a fair contract on the ground of insanity, the mental incapacity of the one must be known to the other of the contracting parties. A defendant who seeks to avoid a contract on the ground of his insanity, must plead and prove, not merely his incapacity, but also the plaintiff s knowledge of that fact, and unless he proves these two things he cannot succeed.’

Lord Esher MR, Fry LJ, Lopes LJ
[1892] 1 QB 599
England and Wales
Cited by:
Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Cited – McLaughlin v Daily Telegraph Newspaper Co. Ltd 15-Jul-1904
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our . .
Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
Cited – Archer v Cutler 1980
(New Zealand) The purchaser of land sought specific performance of the contract. The vendor and purchaser had been neighbours. The neighbour needed part of the vendor’s land for access.
Held: A contract made by a person of insufficient mental . .
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 – Josife v Summertrot Holdings Ltd Admn 4-Apr-2014
The claimant sought to avoid liability under a banking guarantee, saying that he had lacked mental capacity to grant it.
Held: The appeal failed. The judge had correctly applied the law. The execution of the guarantee had been especially . .
Cited – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.

Contract, Health

Leading Case

Updated: 01 November 2021; Ref: scu.238883

Nataliya Mikhaylenko v Ukraine (LS): ECHR 30 May 2013

ECHR Civil proceedings
Article 6-1
Access to court
Lack of access to court for person seeking restoration of her legal capacity: violation
Facts – In 2007 the applicant was deprived of her legal capacity on the grounds that she was suffering from a serious mental illness. Gradually, her mental health improved. In 2009 her guardian applied for her legal capacity to be restored, but the application was dismissed without being considered on the merits owing to the guardian’s repeated failure to appear in court. In 2010 the applicant herself lodged an application for her legal capacity to be restored. However, both it and her subsequent appeals were dismissed on the grounds that the Code of Civil Procedure did not provide her with the right to lodge such an application.
Law – Article 6-1: Under the domestic legislation it was for the applicant’s guardian or the guardianship authority to raise the issue of restoration of her legal capacity before a court. However, the guardian’s application had been dismissed without being considered on the merits as the guardian had not appeared before the court. The applicant had had no procedural status in those proceedings and could not influence them. Her subsequent personal application for restoration of her legal capacity was not considered either because the Code of Civil Procedure did not afford her the right to lodge such an application. However, the Code did not indicate that a declaration of legal incapacity was subject to any automatic judicial review and the duration for which that measure had been ordered in respect of the applicant had not been limited in time. Thus, by virtue of clear and foreseeable rules of domestic law, the applicant could not personally apply to a court for restoration of her legal capacity.
Restrictions on the procedural rights of persons deprived of their legal capacity could be justified to protect their own or others’ interests or for the proper administration of justice. However, the approach pursued by the domestic law in the instant case, according to which incapacitated persons had no right of direct access to a court with a view to having their legal capacity restored, was not in line with the general trend at European level. Moreover, as regards the situation in Ukraine, the general prohibition on direct access to a court by that category of individuals did not leave any room for exception. Nor did the domestic law provide safeguards requiring the matter of restoration of legal capacity to be reviewed by a court at reasonable intervals. Lastly, it had not been shown that the domestic authorities had effectively supervised the applicant’s situation, including the performance of the guardian’s duties, or taken the requisite steps to protect her interests. Therefore, the applicant’s inability to directly seek the restoration of her legal capacity had resulted in that matter not being examined by the courts. The absence of judicial review of that issue, which had seriously affected many aspects of the applicant’s life, could not be justified by the legitimate aims underpinning the limitations on access to a court by incapacitated persons. The situation in which the applicant had been placed had amounted to a denial of justice as regards the possibility of securing a review of her legal capacity.
Conclusion: violation (unanimously).
Article 41: EUR 3,600 in respect of non-pecuniary damage.
(See also Stanev v. Bulgaria [GC], no. 36760/06, 17 January 2012, Information Note no. 148)

49069/11 – Legal Summary, [2013] ECHR 576
Bailii
European Convention on Human Rights 6-1
Human Rights
Cited by:
Legal Summary – Nataliya Mikhaylenko v Ukraine ECHR 30-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 01 November 2021; Ref: scu.511076

Bensaid v The United Kingdom: ECHR 6 Feb 2001

The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed that his article 3 and 8 rights would be infringed if he were removed to Algeria. His claim focused both on the medical treatment in the UK of which he would be deprived and the lack of such treatment in Algeria.
Held: His case under article 3 was not made out: the risk that the applicant would suffer a deterioration in his condition if he were returned to Algeria was ‘speculative’. ‘Private life is a broad term not susceptible to exhaustive definition . . Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.’

44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, [2001] INLR 325, 11 BHRC 297
Bailii
European Convention on Human Rights 3 8
Human Rights
Citing:
Appeal from – Regina and H M Immigration Officer v Bensaid CA 17-Jul-1998
Renewed application for leave to seek judicial review of the Chief Immigration Officer’s decision of 24 March 1997 to refuse the applicant leave to enter the United Kingdom . .
See Also – Regina v H M Immigration Officer ex parte Bensaid CA 21-Jul-1997
Application for leave to seek judicial review of the Chief Immigration Officer’s decision of 24 March 1997 to refuse the applicant leave to enter the United Kingdom. . .

Cited by:
Cited – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .
Cited – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – N v the Secretary of State for the Home Department CA 16-Oct-2003
The applicant entered the UK illegally. She was unwell and was given treatment. She resisted removal on the grounds that the treatment available to her would be of such a quality as to leave her life threatened.
Held: D -v- UK should be . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – X, A Woman Formerly Known As Mary Bell v Stephen O’Brien, News Group Newspapers Ltd MGN Ltd QBD 21-May-2003
An injunction effective against the world, was granted to restrain any act to identify the claimant in the media, including the Internet. She had been convicted of murder when a child, and had since had a child herself. An order had been granted . .
Cited – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
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 – IM (Medical Facilities, Bensaid) Kosovo IAT 17-Jul-2002
. .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – N, Regina (on the Application of) v Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust CA 24-Jul-2009
The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
Held: The right or freedom . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Cited – TN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health, Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.166023

Stojak, Regina (on The Application of) v Sheffield City Council: Admn 22 Dec 2009

The deceased had been detained as a mental patient and supported after her release, by her family financially. Her representatives now said that the respondent had failed in its obligation to provide support for no charge. The authority said that the case brought by way of judicial review was brought out of time.
Held: The authority had sought out people to whom such support should have been given but had failed to find the deceased. However the claimant had initially failed to pursue the matter by way of judicial review, wrongly awaiting the outcome of a Local Government Ombudsman’s report, and time to claim should not be extended.

Grenfell S P
[2009] EWHC 3412 (Admin)
Bailii
Mental Health Act 1983 117
England and Wales
Citing:
Cited – Regina v Education Committee of Blackpool Borough Council ex parte Taylor 1999
The court emphasised that a party considering challenging by way of a judicial review a local government decision should not first await the outcome of a reference to the Local Government Ombudsman, since he has no power to set aside the decision. . .
Mentioned – Regina v Richmond London Borough Council, Ex Parte Watson; Regina v Redcar and Cleveland Borough Council, Ex Parte Armstrong etc Admn 15-Oct-1999
. .
Cited – Regina v Manchester City Council, ex parte Stennett etc HL 25-Jul-2002
The applicants were former mental patients who had been admitted to hospital compulsorily under section 3. On their release they were to be given support under section 117. The authorities sought to charge for these services, and appealed a decision . .

Lists of cited by and citing cases may be incomplete.

Local Government, Health, Judicial Review

Updated: 31 October 2021; Ref: scu.384461

Mrs P v Rochdale Borough Council and Another: CoP 18 Jul 2016

Final hearing in relation to matters concerning the deprivation of liberty of Mrs P and her care arrangements. In this particular case the issues of her welfare and residence are inextricably linked with the appointment of a deputy that is managing her property and finances.
Matharu DJ
[2016] EWCOP B1
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.568154

Regina v Ashworth Special Hospital Authority and Another, ex parte N: QBD 26 Jun 2001

A secure hospital charged with caring for patients considered to be at high risk, imposed rules for monitoring 100 per cent of the telephone calls of high risk prisoners, and a random ten per cent of lower risk patients. Privileged calls were not intercepted. It was held that although this was an infringement of the right to respect for his correspondence, the steps were taken balanced against an understanding of the high risks of escape and other damage which might be suffered. The interceptions took place in accordance with policies approved by the Home Secretary. The interceptions were lawful.
Times 26-Jun-2001
Human Rights Act 1998
England and Wales

Updated: 26 October 2021; Ref: scu.88371

Law Hospital NHS Trust v Lord Advocate and Another: IHCS 20 May 1996

The patient suffered from irreversible damage to the cerebral cortex and fell into a persistent vegetative state in 1992. Permanently insensate, she remained alive only because feeding and hydration were provided to her artificially and because of the nursing care she received in a hospital. Medical experts said her case was useless and that there were no useful avenues of treatment to explore. The patient was unable to consent to treatment ceasing and her family agreed with the experts that the treatment should stop. The hospital raised an action, concluding for declarator that the proposed course of terminating nutrition and hydration and all other life sustaining treatment to the patient would not be unlawful.
Held: Treatment of an insensate patient may be withdrawn where it was not in the patient’s interests. Lord Hope: ‘It may be helpful if I were to describe at the outset what I consider to be the function of the Court in a case of this kind. It belongs to a group of cases which have been recurring with increasing frequency in recent years where the courts are being asked to give their authority to actions to be taken by medical practitioners which raise acute questions of moral or ethical principle. Medical science has now advanced to such a degree that many techniques are now possible which only a generation ago would have been unthinkable. The ability to prolong life by artificial means has reached such a stage that it is possible to nourish the body and preserve it from disease so that life in the clinical sense may be continued indefinitely. Invasive techniques such as those of sterilisation are also possible without the slightest risk of any other physical injury than that which is to be inflicted deliberately. Where the patient is of full age and capable of understanding and consenting to the procedures which on medical advice are for his or her benefit, or decides to refuse medical treatment, the right of self determination provides the solution to all problems, at least so far as the court is concerned. It is not in doubt that a medical practitioner who acts or omits to act with the consent of his patient requires no sanction or other authority from the court. The patient’s consent renders lawful that which would otherwise be unlawful. It is not for the court to substitute its own views as to what may or may not be in the patient’s best interests for the decision of the patient, if of full age and capacity.’
The Lord President, Lord Hope
Times 20-May-1996, 1996 SC 301
Scotland
Cited by:
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Davidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Cited – Clarke v Fennoscandia Ltd and others (Scotland) HL 12-Dec-2007
After being awarded costs in proceedings in the US, the defendants chased the claimant for their costs in Scotland. He sought an interdict saying that the judgment had been obtained by fraud. The defendant had give an undertaking not to pursue the . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.82960

Optident Ltd and Another v Secretary of State for Trade and Industry and Another: HL 2 Jul 2001

The claimants manufactured a dental bleaching product. It contained hydrogen peroxide at levels in excess of the limit. It sought to distribute it under licence as a medical product on prescription. The defendant sought to control its distribution under the cosmetics directive. It was held that the two regimes were distinct, and the medicines directive was specifically disapplied to cosmetics. The central purpose of the product was to improve the appearance of teeth, and that fell squarely within the cosmetics directive, and the product had been properly regulated.
Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Hutton
Times 02-Jul-2001, [2001] UKHL 32, (2001) 61 BMLR 10, [2001] 3 CMLR 1
Bailii, House of Lords
Council Directive 93/42/EEC the Medical Devices Directive
England and Wales

Updated: 03 September 2021; Ref: scu.84471