2017

Cases Reported

Murray v Netherlands	1
Issue: Whether a life sentence imposed on a prisoner with mental disorder was de facto irreducible and hence in breach of Art 3 ECHR in light of the lack of rehabilitation offered.

AN v Lithuania	38
Issue: Whether the process followed in removing capacity breached Art 6 ECHR; whether the consequences breached Art 8.

R (Dale Lee-Hirons) v Secretary of State for Justice	57
Issue: Whether written reasons for recalling a conditionally-discharged patient are necessary at common law and/or under Art 5 ECHR; whether a breach of the duty to supply adequate reasons promptly rendered detention unlawful.

JD v West London Mental Health NHS Trust and Secretary of State for Justice	66
Issue: Whether a Tribunal failure to deal with arguments that ongoing detention breached Arts 5 and 8 ECHR but instead simply to apply the statutory criteria was unlawful; the proper remedy for any such unlawfulness.

Kenneth John Richards v (1) Worcestershire County Council (2) South Worcestershire Clinical Commissioning Group	72
Issue: Whether a private law claim in restitution relating to payments for care that should have been met by public bodies as aftercare provision under s117 Mental Health Act 1983 should be struck out.

GW v Gloucestershire County Council	80
Issue: Whether a Tribunal decision to uphold guardianship was proper in relation to a person also subject to an authorisation under the DoLS regime.

Damien Tinsley (by his litigation friend and property and affairs deputy Hugh Jones) v Manchester City Council -	83
Issue: Whether nursing home care should be funded as aftercare under s117 Mental Health Act 1983 following an admission under s3 of the 1983 Act for an organic personality disorder caused by road crash injuries when damages paid in relation to the road crash were designed to provide for ongoing nursing home care.

Ecila Henderson v Dorset Healthcare University Foundation NHS Trust	89
Issue: Whether the claimant should be allowed to amend pleadings to raise breaches of the Human Rights Act 1998 in failing to recognise a deterioration in her mental health state prior to her killing her mother, liability in negligence having been admitted.

R v Golds	99
Issue: When was an impairment “substantial” within the statutory test for diminished responsibility; the correct directions to the jury; the approach when all the expert evidence was to the effect that the impairment was substantial.

Radu v Germany	112
Issue: Whether detention in a psychiatric hospital remained lawfully “after conviction” under Art 5(1)(a) ECHR when the finding of the sentencing court that a personality disorder was a mental disorder within domestic law was rejected by the courts supervising detention.

Bujdosó and Others v Hungary	129
Issue: Whether restrictions on voting rights for people with intellectual disabilities breached the right to participate in political life on equal terms and the right to equal recognition before the law.

Julien Hira Bisnudew Constancia v Netherlands	138
Issue: Whether a sentence of imprisonment followed by detention in a custodial clinic on the basis of mental disorder was lawful under Art 5(1) ECHR when medical experts could not reach a final diagnosis as the detainee would not cooperate with them.

Blühdorn v Germany	144
Issue: Whether detention in a psychiatric hospital remained lawfully “after conviction” under Art 5(1)(a) ECHR when the opinion of the medical experts disagreed with that of the court that the detainee was a sexual sadist.

Petschulies v Germany	153
Issue: Whether the retrospective extension of the maximum period of preventive detention and its application to a person who had a dissocial personality disorder with psychopathic tendencies and who was detained in a hospital setting breached Art 5(1)(e) ECHR.

Marc Brauer v Germany	165
Issue: Whether refusing to allow an appeal out of time in the case of a man detained in a psychiatric hospital was a breach of the right of access to court guaranteed by Art 6 ECHR.

R v Sean Hackett	171
Issue: Whether a hospital and restriction order was the most suitable disposal following a manslaughter conviction; the factors relevant to the choice between an indeterminate prison sentence and a hospital disposal.

Jennifer Turner v R	180
Issue: Whether a sentence of imprisonment for public protection should be replaced by orders under ss37/41 Mental Health Act 1983 in light of fresh evidence as to the offender’s mental disorder.

R v Lee James Aitchison	187
Issue: Whether a sentence of imprisonment for public protection should be replaced by orders under ss37/41 Mental Health Act 1983 in light of fresh evidence as to the offender’s mental disorder.

R v Siddiqua Akhtar	189
Issue: Whether a trial judge had been right to stay proceedings rather than adjourn a case where special measures required in light of the defendant’s mental health difficulties had not been put in place because of errors by court staff.

Cervenka v Czech Republic	195
Issue: Whether there were breaches of Arts 5(1), (4) and (5) ECHR from the placement of the applicant in a care home on the decision of his guardian when the applicant did not consent but was unable to challenge the detention because it was compliant with domestic law; the adequacy of domestic law.

Marlon James Noble v Australia	215
Issue: Whether the Mentally Impaired Defendants Act 1996 (Western Australia), which allowed detention in prison of a person found unfit to stand trial if other options were inadequate to deal with the risk posed by the person, breached Arts 5, 12, 13 and 14 Convention on the Rights of Persons with Disabilities 2006; whether conditional release provisions breached Art 14; whether the indeterminate nature of the order for detention and violence suffered in detention breached Art 15; whether the CRPD Committee had jurisdiction ratione temporis, whether domestic remedies had been exhausted and whether a complaint was theoretical; the propriety of fitness to plead laws.

Fuller v R	228
Issue: Whether a sentence of detention for public protection should be replaced by orders under ss37/41 Mental Health Act 1983; whether the appellant’s name should be anonymised.

R v Adrian Holloway	236
Issue: Whether admissions made to a psychiatrist were admissible at trial; whether the court could appoint an advocate to assist when a defendant was fit to stand trial; whether a life sentence plus a hospital and limitation direction was wrong in principle or manifestly excessive.

R (OK) v First-Tier Tribunal (Cambian Fairview (Interested Party	242
Issue: Whether Arts 5, 6 and 14 ECHR required that the power of application to a Tribunal by a patient without capacity to apply and detained under s3 Mental Health Act 1983 should be interpreted as a power to apply by the patient or their litigation friend; the correct procedural route when a Tribunal finds that an application purports to have been made on behalf of a patient without capacity.

PI v West London Mental Health NHS	246
Issue: Whether a failure to assess the capacity of a patient during a Tribunal hearing when there were concerns about a loss of capacity was an error of law; whether the reasons for not doing so were inadequate; whether the decision should nevertheless stand

M v (1) First Tier Tribunal (2) CICA	253
Issue: The application of the “overriding objective” in the Tribunal Procedure Rules 2008 in relation to an applicant under the Criminal Injuries Compensation Scheme who was detained in a psychiatric hospital.

R (Ferreira) v HM Senior Coroner for Inner South London	258
Issue: Whether a death in a hospital intensive care unit was a death in “state detention” within the meaning of s7 and s48(2) Coroners and Justice Act 2009 thereby mandating the Coroner to empanel a jury.

R (Ian Stewart Brady) v (1) Lord Chancellor (2) First-Tier Tribunal (Health, Education & Social Care Chamber) Mental Health	274
Issue: Whether the Lord Chancellor could grant legal aid for Tribunal work for a particular patient to a solicitor who did not hold a contract for Tribunal representation; whether the Tribunal had erred in supporting but not formally appointing the solicitor of choice for the patient.

Secretary of State for Justice v MM; Welsh Ministers v PJ	282
Issue: Whether a restricted patient with capacity could consent to a conditional discharge that involved a deprivation of liberty; whether a Tribunal was correct not to consider whether the conditions of a Community Treatment Order breached Art 5 ECHR; the role of arguments under the ECHR in Tribunal proceedings.

R (YZ) v Oxleas NHS Foundation Trust & West London Mental Health NHS Trust	293
Issue: Whether judicial review proceedings of decisions to decline to offer a particular drug treatment and to transfer a patient to high secure conditions should be permitted to proceed.

McCann v The State Hospitals Board for Scotland	306
Issue: Whether a comprehensive ban on smoking in hospital grounds and during home visits, together with a ban on possession of tobacco products and related searching powers, was unlawful and/or breached arts 8 and/or 14 ECHR.

B v Waitemata District Health Board	318
Issue: Whether a policy of not allowing a patient detained in the intensive care unit in a psychiatric hospital to smoke breached the Smoke-free Environments Act 1990 or the New Zealand Bill of Rights Act 1990.

R v Joyce; R v Kay	338
Issue: The relationship between mental disorder and the consumption of alcohol or drugs in assessing whether there was diminished responsibility under s2 Homicide Act 1957; approach to sentencing.

Jasmin Djaba v (1) West London Mental Health Trust (2) Secretary of State for Justice	345
Issue: Whether the Tribunal hearing the case of a restricted patient should consider proportionality arguments resting on arts 5 and 8 ECHR or simply apply the statutory criteria in ss72/73 Mental Health Act 1983.

Matthew David Lewis Kitchener (now known as Jude Michael Armel) v R	355
Issue: Whether orders under ss37/41 Mental Health Act 1983 should be imposed in place of an indeterminate prison sentence in light of fresh medical evidence.

J McG v Devon Partnership NHS Trust (MH)	360
Issue: Whether a discharge under s72(3) Mental Health Act 1983 could be deferred beyond the date a notional s37 liability for detention would expire; whether reasons for upholding detention were adequate.

R (CXF, acting by his mother, his Litigation Friend) v (1) Central Bedfordshire Council (2) North Norfolk Clinical Commissioning Group	366
Issue: Whether the duty to provide aftercare under s117 Mental Health Act 1983 arose in relation to a patient granted daily leave under s17 to take accompanied bus trips to various activities.

DL-H v West London Mental Health Trust and Secretary of State for Justice	372
Issue: Whether a Tribunal was entitled to conclude that a patient’s views were not religious but were symptoms of disorder and that he had a form of personality disorder which the treating team had not diagnosed; whether its reasons for upholding detention were adequate.

R v Bala	375
Issue: Whether orders under ss37/41 Mental Health Act 1983 should be imposed in place of an indeterminate prison sentence in light of fresh medical evidence.

Damien Tinsley (by his Litigation Friend and Property and Affairs Deputy Hugh Jones) v Manchester City Council	381
Issue: Whether nursing home care should be funded as aftercare under s117 Mental Health Act 1983 following an admission under s3 of the 1983 Act for an organic personality disorder caused by road crash injuries when damages paid in relation to the road crash were designed to provide for ongoing nursing home care.

Kenneth John Richards (by his Deputy and Litigation Friend Anne Minihane) v (1) Worcestershire County Council (2) South Worcestershire Clinical Commissioning Group	388
Issue: Whether a private law claim in restitution relating to payments for care that should have been met by public bodies as aftercare provision under s117 Mental Health Act 1983 should be struck out.