The following post was written on the morning of 26 of March 2020. Today, 27th of March, the Chief Coroner brought out Guidance 35 on hearings during the pandemic (no. 35), with the proviso that all these issues will be kept under review.
On the 26th of March the Chief Coroner published Guidance Note 34 (“GN34”) on COVID-19 which can be found here. The Guidance Note addresses many of the issues relating to the impact of COVID-19 on the coronial service. We set out below some answers to questions those involved with the coronial system may currently have in mind, taken from the Guidance Note and other sources (“GN34#(No.)” refers to paragraph numbers in the Guidance Note).
1) Are Coroners’ Courts conducting hearings at the moment?
GN34#10 provides that “no physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place. A particular concern is to ensure social distancing in court and in the court building.”
It is also noted that
All hearings that can possibly take place remotely (via whatever means) should do so, and other hearings should continue only if suitable arrangements can be made to ensure distancing although the Chief Coroner accepts that in many jurisdictions this may be difficult. Hearings which must continue should be those considered essential business
On 7 January 2015 District Judge Mort of the Court of Protection approved a £60,000 settlement agreement reached between Essex County Council and Mr P ( EWCOP 1). For a discussion of the case generally see Rosalind English’s post here.
With a significant backlog of care home cases in the Court of Protection, P’s case runs the risk of becoming something of a precedent on the question of damages for unlawful detention. However, as far as calculation of damages goes, it is light on analysis of principle. This post seeks to explore whether the considerable case law that has developed on damages for false imprisonment in other situations may help illuminate what this type of case is worth. Continue reading →
Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust, Phillips J with assessors, 5 February 2014 – read judgment
Upholding the rights of individuals who lack the mental capacity to conduct proceedings can be a minefield for the unwary or even, as shown by this case, the wary. The point at issue before the court was whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer. Continue reading →
Updated | The House of Lords ad hoc Select Committee on the Mental Capacity Act 2005 has now heard three sessions of evidence, and is currently calling for written evidence (deadline 3 September – details here).
The Committee, chaired by Lord Hardie (former Lord Advocate) and including such heavy-hitters as Lord Faulks (Ed Faulks QC as was) and Baroness Hollins (former President of the Royal College of Psychiatrists and current President of the BMA), aims to “scrutinise the legislation to see if it is working as Parliament intended” and to examined “whether the Government’s implementation programme was effective in embedding the guiding principles of the Act in every day practice, and whether there has been a noticeable change in the culture of care.”
RCW v A Local Authority  EWHC 235 (Fam) (12 February 2013) – Read judgment
This case, described by Cobb J as an “unusual and troubling” case, concerns a 1 year old girl “SB” and a woman “RCW”. SB was born prematurely, at 27 weeks, weighing just 1 kg; almost immediately she was abandoned by her natural mother.
She spent many months in the Special Care Baby Unit. In October 2012 SB was matched with RCW, a single woman who worked as a project manager for the NHS. In January 2013 things took an “unexpected and wretched turn” in the form of RCW’s diagnosis with a brain tumour. Hurriedly, RCW made arrangements with a cohort of friends to care for SB while RCW underwent surgery to remove the tumour which was situated near the optic nerve. The operation, whilst successful in removing the tumour, left RCW without sight; it is not known whether the lack of sight is temporary or will be permanent.
On 11 December 2012 Mr Justice Mostyn handed down judgment in J Council v GU and others  EWHC 3531 (COP) approving arrangements aimed at safeguarding the Article 8 (private and family life) rights of a 57 year old man detained under the Mental Capacity Act 2005 in a private care home. At seven pages, the judgment was admirably concise.
The detained man concerned, referred to in the judgment as George, suffered from a number of separable mental disorders: childhood autism, obsessive-compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia. He lacked the capacity to litigate or to make decisions concerning his care needs (including where he lives), medication he should take, contact he should have with others and about his finances, property and affairs. It was likely that this incapacity would continue, possibly for the remainder of his life. He lived in a private care home and it was agree by all, including the Official Solicitor (who represented George in the proceedings) that it was in his best interests for him to remain living there indefinitely. Furthermore, he should be subjected to restrictions in relation to his contact with others and correspondence in order to minimise the risks that he presented.
An editorial article published in the British Medical Journal on 12 July 2012 (subscription required) has provoked controversy in right-to-life circles. The article, entitled “Sanctity of life law has gone too far” criticises the ruling of Baker J in the “M” case where an application to authorise the removal of artificial nutrition and hydration (ANH) from a patient in a minimally concscious state was refused. This blog reported on the M judgment in September 2011 here, here and here.
The author of the BMJ article, Dr Raanan Gillon, Emeritus Professor of Medical Ethics at Imperial College London (who describes himself as “a hybrid GP and philosopher”) takes Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. More widely, Dr Gillon questions the implications of the judgment for decisions about the best interests of patients whose state of consciousness is higher than minimal. Most controversial of Dr Gillon’s comments is likely to be his conclusion on the resource implications of the approach to best interests of incapacitated patients, which is put in the following terms:
Re E (Medical treatment: Anorexia)  EWHC 1639 (COP) – Read judgment
Update | In an earlier version of this post a question was raised by the author concerning the implications of funding restrictions within the department of the Official Solicitor for cases similar to E’s. The author is happy to make clear that no criticism is made of the actions of the OS in this or indeed any other case in the judgment of Peter Jackson J or in this post.
Mr Justice Jackson has ruled that it would be lawful and in the best interests of a 32 year old woman (referred to in the judgment as “E”) for her to be fed, using physical force or chemical sedation as necessary, for a period of “not less than a year”.
The judgment has sparked considerable press attention, and is also reported to have drawn criticism from Rochdale Lib Dem MEP Chris Davies. Against that background, this post intends to offer a modicum of analysis as to what was decided, why and what lessons the case holds for the future.
DL v A Local Authority & Others  EWCA Civ 253 – Read judgment
Where adults have capacity under the Mental Capacity Act 2005 (MCA 2005), does the “great safety net” of the High Court’s inherent jurisdiction still exist to guard them from the effect on their decision making of undue influence, coercion, duress etc? In its judgment handed down on 28 March 2012, the Court of Appeal confirmed that it does.
DL proceeded in the High Court and the Court of Appeal on assumed (as opposed to agreed) facts, many if not all of which were contested by the appellant. For the court’s purposes however, it was assumed that DL, a man in his 50s who lived with his mother and father (90 and 85 respectively), had behaved aggressively towards his parents, physically and verbally, controlling access to visitors and seeking to coerce his father into transferring ownership of the house into DL’s name, whilst pressuring his mother into moving into a care home against her wishes. The Court of Appeal’s judgment uses the term “elder abuse” for such a situation.
Sir Stephen Sedley, until last year of the Court of Appeal, has launched a stinging rebuttal to the speech of Lord Sumption (Jonathan Sumption QC as was) in which the soon-to-be Supreme Court Justice rebuked the judiciary for failing to stay out of the political arena.
This blog covered Lord Sumption’s speech here. Sir Stephen’s response in the London Review of Books takes issue with Lord Sumption’s assertion of excessive judicial interference in political matters, with the words:
there is a repeated insinuation that judicial interference in the political process regularly occurs: ‘The judicial resolution of inherently political issues is difficult to defend.’ It is not only difficult to defend; it does not happen.
This is a case in which Philip Havers QC of 1 Crown Office Row appeared for the General Dental Council; he is not the author of this post.
The General Dental Council v Savery and others  EWHC 3011 (Admin) – Read judgment
Mr Justice Sales in the High Court has ruled that the General Dental Council’s (GDC) use and disclosure of the dental records of fourteen patients of a registered dentist who was the subject of investigation was lawful.
The court also offered general guidance about how the GDC may proceed (particularly by reference to Article 8 of the European Convention on Human Rights, the right to privacy and family life) when it wishes to investigate allegations against a dentist of impairment of fitness to practise by reference to confidential patient records in the absence of consent from the patients in question.
Two particular measures were under challenge. The first was the introduction of maximum weekly caps on the amount of local housing allowance (LHA). The second was the reduction of the maximum size in accommodation eligible for housing benefit from five bedrooms to four bedrooms.
Dr Mattu was employed by the Trust as a consultant in non-invasive cardiology and general medicine in 1998. In 2002 he was suspended on disciplinary grounds; however, the relevant disciplinary hearing did not occur until 2007 and the suspension was in place until July 2007. Further, Dr Mattu was on sick leave for at least a year from September 2006.
On 21 June 2011 the Divisional Court held to be “irrational and … a breach of the Claimant’s Article 6(1) right to a fair hearing” a decision by the Fitness to Practise Panel of the General Medical Council to admit hearsay evidence under its own rules, having determined that such evidence would not be admissible under the criminal rules of evidence .
Professor Bonhoeffer, described in the judgment as “an eminent consultant paediatric cardiologist of international repute”, was charged by the GMC with impairment of his fitness to practise arising from alleged serious sexual misconduct towards boys and young men in Kenya. It was alleged that over a number of years the Claimant travelled to Kenya to undertake charitable medical work and that the victims were children and young men to whom he had provided sponsorship by paying for their education and accommodation.
On 30 November 2010 the High Court handed down its written ruling upholding the 7/7 inquests Coroner’s decision that there were to be no ‘closed’ hearings at the inquests. An analysis of the Coroner’s decision can be found here. The High Court had previously given its decision, with an indication that reasons were to follow.
The Divisional Court of the High Court, composed of two colleagues of the Coroner (Dame Heather Hallett) in the Court of Appeal, robustly rejected the Home Secretary’s application for a review of the decision. In short, both judges concurred with Hallett LJ’s decision that the Coroners Rules did not provide a power to hear evidence in sessions from which ‘interested persons’ (including families of the 7/7 victims) could be excluded.
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