To help me keep up to date I curate case’s / useful information which have popped up during the month and keep it handy. I’ve been asked to distribute the same internally so I thought I’d post it online also. NB this is not exhaustive list of updates and would recommend checking out bailli / gov.co.uk/ mentalhealthlaw.co.uk etc for more updates. NB credit to the above sites for some of the summaries used.
Case Law
SB (A Patient; Capacity To Consent To Termination), Re [2013] EWHC 1417 (COP) (21May 2013)
Transcript
The patient in this case was a 37 year old highly intelligent graduate who worked in IT. For the past 8 years she presented with symptoms which were diagnosed as those of bi-polar disorder. She had been detained under compulsory or similar powers at various times in Italy, in and here in England.
The proceedings were issued in the Court of Protection because the patient’s mother was concerned “very strongly” about the patient requesting a termination. The issue related to her capacity. Section 1(2) of the Mental Capacity Act 2005 provides “A person must be assumed to have capacity unless it is established that he lacks capacity.” Accordingly, unless it is established, on a balance of probability, that the mother does not have capacity to make the decision that she undoubtedly has made, her autonomy as an adult to request and consent to the proposed abortion procedure is preserved.
The Court of Protection’s decision
This case differed from most cases before the Court of Protection, as Hofman J not only disagreed with the assessment of the medical experts and the patient’s family but decided that the patient could speak for herself. In Holman J’s view, the patient’s evidence was that she did not express a sense of regret about a termination she had had in the past. “She was very clear that she regrets that she became pregnant at the time, but not the termination”
Section 1(2) asks the court to consider whether the reason for the decisions are rational, however section 1(4) of the Act expressly provides that someone is not to be treated as unable to make a decision simply because it is an “unwise” decision.
The patient told the court she was “very worried” about her ability to bring up a child. In the judge’s view, since she had for 8 years suffered from a lifelong, relapsing bi-polar disorder, it was “entirely rational” that she had that worry.
Hofman J stated that the decision, with its risks of consequent regret, was one that the patient should be at liberty to take. The judge fully appreciated her situation, including the fact that she was s currently compulsorily detained. He highlighted that patient said “I am extremely unhappy where I am. Imagine being unhappy and being pregnant.” And stated that it seems to [me] to be a perfectly understandable position for a detained patient to take, even though it is not one that all detained patients would take.
He there after concluded:
“My own opinion is that it would be a total affront to the autonomy of this patient to conclude that she lacks capacity to the level required to make this decision”
It had not been established that she lacked capacity to make decisions about her desired termination, and Hofman J will either make a declaration to that effect or dismiss these proceedings.
SCC v LM & Ors [2013] EWHC 1137 (COP
(1) As a result of his Alzheimer’s Disease and vascular dementia, JM lacked capacity to litigate, or make decisions as to his residence, care plan, contact with his family, or dealing with his property and financial affairs.
(2) It was in JM’s best interests to remain at the AH care home; it was not in his best interests to be cared for by his daughter WM, either in the UK or Turkey, in particular because of her psychological profile and failure to provide a detailed proposed care plan.
(3) In light of a recent development (JM had been taken out of the care home in breach of an injunction), contact by family members could be suspended, and resinstated at the discretion of the local authority.
(4) A local authority deputy was appointed to sell the home and administer the finances, because if WM were deputy she would refuse to meet the local authority’s fees.
(5) JM’s passport could not be returned to the family and would remain with the Official Solicitor until further review.
(6) Any attempt to publicise the case would be a cruelty to JM.
(7) The case would be reviewed on the first available date after 3 months, or earlier if a committal application is made by the local authority.
PS v LP (2013) EWHC 1106 (COP), (2013) MHLO 43
In June 2008, LP, left her husband and family in South East London and moved to the Midlands with PP, a man with whom she had had an affair and with whom she decided to cohabit. She proceeded some days later to go with PP to contact the police and to indicate that she and he felt in danger from LP’s family who, they were sure, would seek to trace them. LP alleged a history of abuse and domestic violence at home and did not wish to return or even let her husband and family know where they were. At the time she left her husband and family she was aged fifty nine and is now sixty four.
On 25th August 2008 when LP suffered a cerebral aneurism which left her severely disabled and it was, impossible to obtain from her any indication of her wishes at time of the hearing, she was in 24hour care at a care home. It was uncertain whether she knew who or where she is.
Since her illness and subsequent disability she did not see her husband or any of the PS family despite them tracing her. The family had discovered where she was and attended the nursing home and sought to see her. The local authority ensured that they did not according to what they knew of the express wishes of LP when able to state them.
The local authority began Court of Protection proceedings, to determine 1) residence and 2) whom LP should see.
The court had to consider whether preventing family to contact her would amount to breach of Article 8.After considering LP’s wishes in accordance with s4(6) of the act, based on evidence presented including submissions by a professor who had created a linguistic programme to analyse a will written by LP. The court concluded:
1. First, not without very careful thought, I take the view I cannot direct that contact be immediately restored to husband or family and particularly PS, the Applicant, terribly sad though that is. It appears that LP took the decision that her future was with PP and she wished to break with the past. Accordingly, I declare that at present it is in the best interests of LP not to see her family. I say this with great regret and I hope not without sympathy for the family from whom she was estranged but this is not the time to experiment with contact. Unless things change, her wishes must be respected and the position remains as it is.
2. I find that in coming to that conclusion I have not overridden Article 8 rights but, if I have and to the extent that I have, then that overriding is reasonable and proportionate.
3. And, second, I come to this conclusion. The time may yet come when it is in the best interests of LP to see her family again but that can, in my judgment, only be when she is capable of expressing a view to that effect. Despite Miss Hewson’s elegantly expressed argument, it is not, in my view, appropriate for there to be a trial period of contact. That said, it is only right the extended family should be kept informed of developments. I, therefore, invite Mr. Patel, on behalf of the Official Solicitor, to suggest now a means by which after approximately every six months contact can be made with PS and her family whereby the family are told whether LP has developed an ability to express, or, indeed, has expressed a genuine wish to see PS and/or the remainder of her family in which event there will be permission to apply on forty eight hours notice for urgent directions to me and I shall reserve the case to myself when available.
Re GM: MJ and JM v The Public Guardian (2013) MHLO 44 (COP)
The applicants had applied to the court for the retrospective approval of a number of gifts they have made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they have described as their deputyship expenses.
The court revoked their appointment as deputies as GM’s finances were in “disarray” because of their conduct, and it was in GM’s best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place.
SL v Westminster City Council (2013) UKSC 27, (2013) MHLO 45
Transcript
UK Supreme Court Judgments 9th May 2013 – Part 2′ (9/5/13). Video of Lord Carnwath summarising the judgment.
The issue raised by this appeal was whether the respondent (SL), a failed asylum-seeker, was at the relevant time in need of ‘care and attention’, requiring the provision of accommodation by the local authority under section 21(1)(a) of the National Assistance Act 1948.
It was decided that applicants need to demonstrate not only that they have a need for care and attention but that without a home they will be unable to receive it to receive help under s21(1)(a).
Pitt v Holt (2013) UKSC 26, (2013) MHLO 46
Transcript
UK Supreme Court Judgments 9th May 2013 – Part 1′ (9/5/13). Video of Lord Neuberger summarising the judgment.
As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax; Futter’s case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, and dismissed Mrs Pitt’s appeal on this point (she had not breached her fiduciary duty so the settlement would not be set aside on this basis). (2) The court considered the test for setting aside a voluntary disposition on the ground of mistake, and allowed Mrs Pitt’s appeal on this point.
Baker Tilley (A Firm) v Makar (2013) EWHC 759 (QB), (2013) MHLO 33
During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of CPR Part 21, and stayed proceedings pending the appointment of a litigation friend.
Held: The master put more weight on the incident than necessary, and should have taken account of M’s ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind.
Greaves v Stolkin (2013) EWHC 1140 (Ch), (2013) MHLO 36
“Mr Leslie Stolkin …, some seven weeks before his death, executed a codicil. This case concerns the validity of that document. …[O]ne of the deceased’s sons, Mr Gary Stolkin … disputes the validity of the Disputed Codicil on two grounds: (i) Want of testamentary capacity; and (ii) Want of knowledge and approval. … In my judgment, the Disputed Codicil is valid, and it should be admitted to probate.”
The judgement main basis was on the attendance note of the drafting solicitor that stated at the time the client was lucid as well as discussion of specific terms within the codicil between the deceased and his son.
