Case Law and Legal Summaries November 2019

There are five cases this month:

  • Mundell v (Name 1) provides guidance on the extent to which capacity to marry requires an appreciation of the financial implications of divorce.
  • In A North East Local Authority v AC, the Court of Protection found a return home was not in the person’s best interests, but required the local authority to find a better placement than it was already providing.
  • In Lincolnshire County Council v AB the court decided it was not in AB’s best interests to have contact with sex workers facilitated.
  • In London Borough of Croydon v CB the court made an interim order under section 48 of the Mental Capacity Act 2005 approving a care plan in relation to a man who was living in conditions amounting to extreme self-neglect.
  • DL v London Borough of Enfield involved a challenge to the Court of Protection as to its powers in deprivation of liberty cases.

In news and guidance, a Local Government Ombudsman report has been published into a failure to review a care plan, and the Joint Committee on Human Rights’ has released a report into the human rights of people with a learning disability and/or autism in mental health hospitals.


Case Law and Legal Summaries October 2019

There are four cases this month:

In news and guidance, a new Court of Protection pilot mediation scheme.


Case Law and Legal Summaries September 2019

There are 2 cases this month, both concerning the inherent jurisdiction of the High Court. Under the inherent jurisdiction, an application can be made directly to the High Court for an order that protects a vulnerable person whose ability to make a free choice has been limited by factors such as constraint, coercion or undue influence.

  • Redcar & Cleveland BC v PR specifies a number of conditions that must be met before an injunction under the inherent jurisdiction will be made against a vulnerable adult in order to protect them.
  • Wakefield Metropolitan District Council v DN adds some clarity to when an adult will be considered ‘vulnerable’ under the inherent jurisdiction and is an example of the Court’s newly developed ‘anticipatory orders’.

In news and guidance, a failure by a local authority to conduct a carer’s assessment under the Care Act 2014 leads to a finding of fault by the Local Government and Social Care Ombudsman.


Case Law and Legal Summaries August 2019

There are 7 cases this month. United Lincolnshire Hospitals NHS Trust v CD involved a pre-emptory declaration as to a pregnant woman’s birthing plan. Re AB involved an appeal against a Court of Protection judgment authorising an abortion against a pregnant woman’s wishes. Birmingham City Council v SR concerns deprivations of liberty for those conditionally discharged under the Mental Health Act 1983. Jamous v Mercouris clarifies the law about the appointment of litigation friends and illustrates a general point about best interests. London Borough of Tower Hamlets (No 2) develops the law pertaining to consent to sexual relations and contains an important statement of general principle with regard to court-developed tests of particular mental capacities. Royal Borough of Greenwich v CDM (No 2) introduces a useful method of approaching questions of fluctuating capacity. Finally, and unusually, Bashir v Bashir contains an error of law that should be avoided.

In news and guidance, a report by the All-Party Parliamentary Group on Social Work and the British Association of Social Workers on Social Workers and a New Mental Health Act.


Case Law and Legal Summaries July 2019

There are 7 cases this month. In An NHS Foundation Trust v AB, which has since been successfully appealed, a judge found it was in the best interests of a woman to have an abortion against her wishes. BP v London Borough of Harrow shows that a local authority will not always be made liable for the other party’s costs, even when it has caused further litigation by its conduct. Re Lawson, Mottram and Hopton provides guidance on the appointment of personal welfare deputies and calls the relevant part of the Code of Practice into question. NHS Trust v JP illustrates the need for early and coordinated care planning when a woman without relevant mental capacities becomes pregnant. A City Council v LS was an attempt to use the inherent jurisdiction to authorise the deprivation of liberty of a 17-year-old at risk of criminal exploitation. Poole Borough Council v GN concerned the scope of a local authority’s liability in negligence. The Court found that the local authority did not owe a duty of care to a family placed in housing where they were subsequently subjected to harassment and antisocial behaviour. B v A Local Authority involved an appeal against an earlier decision of the Court of Protection as to capacity to consent to sex, internet use, and residence.


Case Law and Legal Summaries June 2019

There are six cases this month.London Borough of Tower Hamlets v NBindicates that the test for capacity to consent to sexual relations might soon be modified for people in established relationships.Patel v Arriva Midlandsshows that deception by the assessed person can undermine a finding of incapacity.University Hospitals of Derby and Burton NHS Foundation Trust v JandHarrow CCG v IPJ & Othersconcerned best interests in the context of medical treatment and a care plan.R (Maguire) v HM Senior Coroner for Blackpool and Fyldeconcerned failures in care and directions by a coroner during an inquest in relation to the right to life and neglect. Finally,PBM v TGTinvolved a decision as to whether a man should be told about the extent of his financial assets.

In News and Guidance this month, the British Psychological Society has published guidance on capacity assessment and capacity to consent to sexual relations, and the Care Quality Commission has published an interim report on restraint, seclusion, and segregation.


Case Law and Legal Summaries May 2019

There are 2 cases this month. Office of the Public Guardian v PGO shows the importance of correct procedures when someone makes a Lasting Power of Attorney and A, B, C &D (Children - Learning Disabled Parents) illustrates the importance of support that takes into account a person’s learning disability.

In news and guidance, the Mental Capacity (Amendment) Act becomes law, a Lasting Power of Attorney pilot scheme launched by the Office of the Public Guardian, the latest Family Court Statistics, and a Local Government and Social Care Ombudsman decision into unlawful failure to assess under the Deprivation of Liberty Safeguards (DoLs) on a large scale.


Case Law and Legal Summaries April 2019

There are four cases this month. In East Lancashire Hospitals NHS Trust v PW the court had to decide on the capacity and best interests of a man to refuse a leg amputation, and in London Borough of Hackney v SJF it was in a woman’s best interests to move to different accommodation notwithstanding her desire to return home to live with her son. In DCC v MLH it was made clear that permission from the Court of Protection is required before obtaining the DNA of a person without capacity for a paternity test. Finally, in Hounslow CCG v RW the court was careful to make sure that aggressive behaviour by the son of a man without mental capacity was seen in the context of the excellent care that he was also providing.


Case Law and Legal Summaries March 2019

There are 4 cases this month. In Southend-on-Sea Borough Council v Mr Meyers orders made were under the inherent jurisdiction of the High Court that came close to depriving someone with mental capacity of their liberty. In CB v Medway Council it was found inappropriate for the Court of Protection to dismiss deprivation of liberty cases without a full best interests assessment. In Re B and Re A the court had to consider the issue of capacity and best interests in relation to social media use, care, sexual relations, and contact.

In news and guidance, the CQC has published its Monitoring the Mental Health Act report for 2017/18 and new guidance on sexuality and relationships in adult social care services.


Case Law and Legal Summaries February 2019

There are four cases this month. In R v London Borough of Hammersmith and Fulham, it was found that the need for accommodation on its own does not amount to a need for care and support under the Care Act 2014.

In Esegbona v King’s College Hospital NHS Foundation Trust, an NHS Trust’s failure to follow the Deprivation of Liberty Safeguards led to it paying damages for false imprisonment, causing distress, and mistreating the person’s family.

In A Local Authority v BF the inherent jurisdiction of the High Court was used to deprive a man with mental capacity of his liberty.

Finally, in SW v Cornwall Partnership NHS Trust, the Upper Tribunal issued guidance on how a person’s risk of relapse might influence the discharge of their Community Treatment Order.

In legal news, the Ministry of Justice have issued an online consultation into revising the Mental Capacity Act 2005 code of practice.


Case Law and Legal Summaries January 2019

There are 5 cases this month including decisions on s.117 aftercare; a decision as to whether it would be in the best interests of a man to have his personal injury financial settlement disclosed to him; and a case of willful neglect or ill-treatment under s.44 of the Mental Capacity Act 2005. The update also covers Welsh Ministers v PJ, which revolved around whether a deprivation of liberty was a lawful condition on a Community Treatment Order, and the sequel to Secretary of State for Justice v MM, on whether a deprivation of liberty could be authorized using the High Court’s inherent jurisdiction given that the Mental Health Tribunal or Secretary of State does not have the power to impose on as part of a patient’s conditional discharge.

In legal news, there are details of two Local Government Ombudsman reports into provision of social care, and safeguarding timescales.


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