The Commission was funded by two supporters of assisted suicide, author Terry Pratchett and businessman Bernard Lewis, and despite reassurances that the running and outcome of the Commission were independent, some individuals and groups opposed to the practice regrettably refused to give evidence to the Commission. Still, the range and quantity of the evidence, which included evidence gathered from international research visits, qualitative interviews and focus groups, commissioned papers, and seminars, is impressive and can be read and watched here.
Any lawyer dealing with civil or criminal cases tends to think that, if there is a time limit for doing something in the case, then if that thing does not get done on time, the court may be lenient if there is good reason for extending time. The problem comes where the court is only given power to hear an appeal by a specific set of rules, and the rules say, for instance: you must appeal within 14 days of the decision. In the statutory context, that may mean precisely what it says. And the court, however sympathetically inclined, cannot do otherwise and allow a late appeal.
We see this from this mental health case. Ms Modaresi, who suffers from schizophrenia, was admitted to hospital on 20 December 2010 for assessment under section 2 of the Mental Health Act. Section 66 of the Act provides that where a patient is admitted to hospital in this way, “an application may be made to [the tribunal] within the relevant period” by the patient, and “the relevant period” means “14 days beginning with the day on which the patient is admitted”.
When assessing whether a patient’s care deprives him or her of their liberty, and thereby entitles them to the procedural protections under Article 5 (4) ECHR, the right to liberty, the Court of Appeal has ruled that the appropriate comparator is an individual with the same disabilities and difficulties who is not in care. The court also provided useful general guidance for deprivation of liberty cases.
P is a 39 year old man with Cerebral Palsy and Down’s Syndrome who lacks the capacity to make decisions about his care and residence arrangements as a result of his physical and learning disabilities.
The report, which finds a “systemic failure by public authorities to recognise the extent and impact of harassment and abuse of disabled people” can be downloaded here, the “easy read” version here and the executive summary here. I have also reposted the Executive Summary via Scribd below. The Inquiry found, amongst other things:
Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors  EWCA Civ 895 – Read judgment
The general rule in civil law cases is that the loser pays the winner’s legal costs, even if the case settles before trial. As with all general rules, there are plenty of exceptions, and many relate to public authorities. Two of those exceptions have just been chipped away at by the Court of Appeal.
Two important judgments increasing the likelihood that local authorities will have to pay out costs emerged the usual last-minute glut before the court term ended on Friday. The first concerned costs in the Court of Protection when an authority has unlawfully deprived a person of their liberty. The second was about costs in immigration judicial review claims which had settled following consent orders.
London Borough of Hillingdon v. Steven Neary  EWHC 1377 (COP) – read judgment here.
The Court of Protection (“COP”) emphatically ruled last week that a local authority unlawfully detained a young man with autism and learning difficulties for almost an entire year, breaching his right to respect for family life as a result.
I watched Panorama’s exposé of institutional abuse of adults with learning disabilities at Winterbourne View Hospital with mounting horror. What legal mechanisms were available to prevent abuses like this, or bring justice to victims?
There can be little doubt that the acts of the carers towards the patients were inhuman and degrading, a violation of their Article 3 rights. It is highly questionable whether the establishment fulfilled their rights to privacy and dignity under Article 8, the right to private and family life.
There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom. An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.
The reasons for this appearance are complex though, and not necessarily the fault of any individuals working within the courts. I think it’s important to draw a distinction between different ways that greater ‘transparency’ could be achieved; some might be more helpful than others.
P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener)  EWCA Civ 190- read judgment
What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.
In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.
G v E & Ors  EWHC 3385 (Fam) (21 December 2010) – Read judgment
Manchester City Council has been ordered to pay the full legal costs of a 20-year-old man with severe learning disabilities who was unlawfully removed from his long-term foster carer. The council demonstrated a “blatant disregard” for mental health law.
The case has wound an interesting route through the courts, with hearings in the Court of Protection, Court of Appeal, and also a successful application by the Press Association to reveal the identity of the offending local council in the interests of transparency. In August, Siobhain Butterworth wrote that the decision to name and shame the council was a “good” one which “marries the need for transparency in the treatment of vulnerable people with the right to a private life“.
Now, Mr Justice Baker has taken the unusual step of ordering that Manchester City Council pay all of E’s family’s legal costs. The general rule in the Court of Protection is that costs should not be awarded, but as the judge ruled it can be broken in certain circumstances:
D Borough Council v AB  EWHC 101 (COP) (28 January 2011) – Read judgment
In a case which is fascinating both legally and morally, a judge in the Court of Protection has ruled that a 41-year-old man with a mild learning disability did not have the mental capacity to consent to sex and should be prevented by a local council from doing so.
The case arose when a local council, following allegations that a mentally disabled man made sexual gestures towards children, sought a court order stating that “Alan” (a false name) did not have the mental capacity to consent to sexual relations. The council ultimately wanted Alan to be banned from having sexual relations with his former house-mate and sexual partner.
TTM (By his Litigation Friend TM) v London Borough of Hackney, East London NHS Foundation Trust; Secretary of State for Health – Read judgment
The Court of Appeal has ruled that the local authority, but not the detaining hospital, was liable to pay compensation to a person who had been unlawfully detained under Section 3 of the Mental Health Act 1983. The case provides important guidance on the liability of mental health and medical professionals in the difficult area of detaining patients, as well as the ability to recover damages where a claimant is unlawfully detained.
The Court held that the patient’s detention had been unlawful from the start when the approved mental health professional [‘AMHP’] erred in whether the patient’s relative objected to admission. The local authority responsible for the AMHP could not rely on the Section 139(1)of the Mental Health Act 1983 [‘the Act’] statutory protection from civil liability, which had to be read down by virtue of Section 3 of the Human Rights Act 1998 to give effect to the patient’s right to liberty under Article 5 of the ECHR.
Secretary of State for Justice v RB  UKUT 454 – Read judgment
In a fascinating recent case, the Upper Tribunal has departed from a line of court authority to decide that where a patient has been detained under the Mental Health Act 1983, conditionally discharging that patient from hospital subject to conditions which might themselves amount to a form of detention is compatible with Article 5 of the European Convention of Human Rights, the right to liberty .
RB, who was aged 75, had been detained under the Mental Health Act on 30 June 1999 following a conviction for indecent assault on a boy aged under 16. He suffered from a persistent delusional disorder, which rendered him a “strongly misogynistic”, lifelong paedophile.
The European Court of Human Rights has rejected the claim of a man detained by the police for 9 days under mental health law. Despite legislation deliberately making it difficult to sue authorities carrying out mental health functions, the court ruled that the law did not unduly restrict access to the courts.
Although Mr Seal ultimately lost, his claim – and in particular a strong dissenting judgment by Baroness Hale in the House of Lords – highlights the tricky line the state must tread in relation to people with mental health problems in relation to their access to justice.
Updated | JXF (a child) v York Hospitals NHS Foundation Trust  EWHC 2800 (QB) – Read judgment
Mr Justice Tugendhat has held that the High Court should withhold the identity of a child claimant when approving the settlement of a clinical negligence case. The decision represents a restatement of the orthodox principle that cases should be heard in public and reported without restrictions, and that anonymity orders should only be granted after careful scrutiny.
His reason for coming to this particular decision was that revealing the name of the claimant would “make him vulnerable to losing the [settlement] money to fortune hunters or thieves.”
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.