Case Law and Legal Summaries December 2018

There are five cases this month. Z v Kent County Council contains detailed guidance on what the ‘presumption’ of mental capacity does not require, the Care Quality Commission v Hillgreen Care concerns the prosecution of a care provider for failing to ensure that residents were protected from sexual assaults, SR v A Local Authority addresses restrictions on the contact between a woman with dementia and her husband who had expressed support for euthanasia, Secretary of State for Justice v MM concerned whether the First-tier Tribunal could authorise conditions for a conditional discharge for a mental health patient which amount to a deprivation of liberty, and Western Health and Social Care Trust v Secretary of State and London Borough of Enfield included a determination of ordinary residence.


Case Law and Legal Summaries November 2018

There are seven cases in this month’s Case Law and Legal Summaries. The Public Guardian v DAaddresses two issues relating to Lasting Powers of Attorney in which the person 1) requests that others help them to die, and in which 2) attempts to restrict the actions of multiple attorneys. Care Management Group v Care Quality Commissionupholds a Care Quality Commission decision not to authorise the expansion of a residential service for adults with disabilities. UCL Hospitals NHS Foundation Trust v KG and Re SJinvolved best interest decisions in relation to medical treatment. London Borough of Islington v AA addressed a case on the intersection of neglect and deprivation of liberty. Darnley v Croydon Health Services NHS Trust involved a decision as to when misinforming someone of waiting times in A&E might lead to a claim in negligence, and A Local Authority v Pwas a case regarding the provision of covert contraception.

In this month’s News and Guidance section, the Care Quality Commission has published its annual ‘State of Care’ report and The Equality and Human Rights Commission has made an updated submission on ‘Disability rights in the UK’ to the UN Committee on the Rights of Persons with Disabilities. It also includes a number of Local Government Ombudsman decisions on the implementation of the Care Act 2014.


Case Law and Legal Summaries October 2018

There are three cases in this month’s Case Law and Legal Summaries. Re SH and LB Enfield v Matrix Deputies both clarify the law pertaining to professional deputies, especially those that do not work for a local authority. LB Hounslow v A Father illustrates how the fear of legal costs can aggravate a dispute and shows the hard line that the Court of Protection can take in such cases.

The News and Guidance section reports on the publication of a Local Government Association Guide to ordinary residence and the Local Government and Social Care Ombudsman’s annual review of complaints. It also contains two Ombudsman reports in which fault was found: one for unjustified delays in safeguarding investigations and one for a failure to pay sufficient attention to a person’s needs when reducing the level of care provided to them.


Case Law and Legal Summaries September 2018

There are six cases in this month’s Case Law and Legal Summaries. InLondon Borough of Lambeth v MCS,a failure to support a woman to return home to Columbia led to the local authority and Clinical Commissioning Group being liable for additional costs.VS v St Andrew’s Healthcaresets out the capacity test for a detained patient to begin tribunal proceedings.PBC v JMAcontains guidance for those who wish to make gifts from a person without capacity’s funds in order to avoid inheritance tax. AF (Children) (no 2)clarifies responsibility for deprivations of liberty when a child turns 16.Y v A Healthcare NHS Trustconcerns the retrieval of sperm from a patient who lacked capacity. Finally,R (on the application of VI) v London Borough of Lewishamconcerns a judicial review of a needs assessment.

The News and Guidance section reports two decisions by the Local Government Ombudsman in regard to delayed deprivation of liberty assessments, and confidentiality, and information regarding direct payments, and care planning. It also features a link to a special report by 39 Essex Street on the Mental Capacity (Amendment) Bill.


Case Law and Legal Summaries August 2018

In this month’s Case Law and Legal Summaries, Re Y is the Supreme Court’s decision on when judicial permissions must be sought for the removal of artificial nutrition and hydration; and Re RD (Deprivation or Restriction of Liberty) contains interesting remarks on the ‘complete supervision or control’ part of the test for a deprivation of liberty.

The News and Guidance section reports on new governmental guidance on learning disabilities and dementia, the Social Workers Regulations 2018, Family Court statistics for the first quarter of this year, and Sir James Munby’s final press conference.


Case Law and Legal Summaries July 2018

This month’s Case Law and Legal Summaries include R(TP and AR) v The Secretary of State for Work and Pensions, the first successful challenge to any aspect of Universal Credit. In Re HH (Attorney’s Application for Retrospective Approval)it was found that the holder of an Enduring Power of Attorney is under ‘stricter duties’ to be financially responsible than the person would have been if they had mental capacity. Re FXillustrates that understanding the law and a good rapport with the person are more important when assessing capacity than medical expertise. Royal Borough of Greenwich v CDMcontains an interesting comment on fluctuating capacity to consent to treatment and care. Finally, CP v North East Lincolnshire Council involved issues regarding informal care and personal budgets.

In News and Guidance, The Mental Capacity (Amendment) Bill has been published, the Courts and Tribunal Service have published an update into the ongoing reforms that can be expected across the courts, and two Local Government Ombudsman Decisions are of wider interest.


Case Law and Legal Summaries June 2018

This Case Law and Legal Summary covers two cases. Lovett v Health and Care Professions Council concerns professional misconduct and the failure to disclose information, and PW v Chelsea and Westminster Hospital NHS Foundation Trust concerns an appeal against the decision of a Court of Protection judge that it would be in the best interests of an elderly man with dementia to withdraw his nasogastric tube.

In News and Guidance; the Mental Capacity Forum’s 2017 Annual Report has been published, Court of Protection Regional Hubs will soon issue their own section 16 and 21A applications, two Local Government Ombudsman decisions on implementing the Care Act 2014, and the All-Party Parliamentary Group call for evidence on dementia and disability.



Case Law and Legal Summaries May 2018

Nutt v Nutt gives an excellent outline of the law pertaining to capacity, ‘knowledge and approval’, and undue influence when making a will. In WB v W District Council, the Court of Appeal found that a person without the relevant mental capacity cannot make an application for housing under the Housing Act 1996. Finally, Buckinghamshire County Council v RT involves the application for a deprivation of liberty of a 17 year old.

This month’s news and guidance includes the Learning Disabilities Mortality Review Annual Report 2017, the updated 39 Essex Chambers guidance on ordinary residence, the interim report of The Independent Review of the Mental Health Act, a Local Government Ombudsman decision on reablement care and the Care Act 2014, and findings of a safeguarding adults review.



Case Law and Legal Summaries April 2018

April’s Case Law and Legal Summaries features five cases; AB v HT raises interesting questions in relation to past, present, and future capacity, undue influence, and an alleged forced marriage, Re M concerns a case of apparent bias in a Court of Protection judge, The Secretary of State for the Home Department v Skripal is a medical case with a best interests decision of wider interest, Re AR makes it clear that ‘generic’ orders cannot be used to appoint deputies, and Re JMK raises controversy about foreign powers of attorney.

This month’s news and guidance features the Government’s response to the Law Commission’s proposals for replacing the Deprivation of Liberty Safeguards (DoLS).


Case Law and Legal Summaries March 2018

This month's Case Law and Legal Summaries feature three cases:

  • The first, CN v Poole Borough Council, involves a judicial determination of the scope of the duty of care owed in negligence by a local authority towards those that it places in housing.
  • In the second, DB v SSWP, the Upper Tribunal gives guidance on making applications for an appointee for social security benefits when there is a valid lasting or enduring power of attorney.
  • Finally, London Borough of Brent v NB shows that the wishes of a person without capacity must be treated carefully even when those wishes are believed to result from the influence of another person.

This month’s news and guidance features; the Joint Committee on Human Rights inquiry into the Deprivation of Liberty Safeguards, a Safeguarding Adults Review of Mendip House in Somerset, the CQC’s ‘Monitoring the Mental Health Act’ report for 2016/17, the Judicial College’s new edition of the ‘Equal Treatment Bench Book’.


Case Law and Legal Summaries February 2018

Three cases feature in this month’s Case Law and Legal Summaries.

In Re KT, Mr Justice Charles found that when no friend or family member is available to act as the person’s representative in uncontested deprivation of liberty cases, then the Court of Protection should appoint a Visitor to provide a report. In Re DMM, it was found that mental capacity to marry includes understanding the reasonably foreseeable financial consequences of the marriage, including that a will would be automatically revoked. Finally, in Re P, it was found that there is no necessary presumption that paid care for a person with dementia is more sustainable in the long term than care supplied by family and friends.

The ‘News and Guidance’ covers: the carer and service user survey into the review of the Mental Health Act 1983; the new Deprivation of Liberty (DoL) Form 3B; two Local Government and Social Care Ombudsman decisions relating to assessments of needs for care and support, and care home top up fees; a new Department of Health national protocol on pressure ulcers and adult safeguarding; the report of a Health and Care Professions Council tribunal decision in which there was the failure to undertake a proper and full needs assessment under the Care Act 2014; and a practice note from the Office of the Public Guardian on giving gifts on behalf of a person without capacity.


Case Law and Legal Summaries January 2018

This month’s update covers three cases with implications for social care.

  • R (Tinsley) v Manchester City Council concerned whether local authorities must fund Mental Health Act 1983 (MHA) aftercare to people who have previously been awarded significant damages in relation to their psychiatric injury.
  • DL-H v West London Mental Health Trust concerned the status of expert evidence when distinguishing between someone’s religious beliefs and their mental disorder.
  • Finally, in MB v Surrey County Council, changes to the evidence about a man’s mental capacity meant that no best interests decisions could be made on his behalf, despite such decisions having been made for over a decade.

The ‘News and Guidance’ section covers the significant changes to police officers powers of entry and removal to a place of safety under the MHA (sections 135 and 136), the new Court of Protection Rules (COP) which also came into force, and the independent review of the MHA, which people working in social care might wish to contribute to.


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