denotes premium content | Jan 9 2009 Feature
posted 12 Jun 2002 in Volume 7 Issue 4
Court to decide capacity not medical professionalMartin Masterman-Lister v Jewell & Home Counties Dairies: Martin Masterman-Lister v Brutton & Co
[2002 EWHC 417 (QB) 15.3.02]
The claimant had been involved in a road traffic accident and had suffered serious head injuries in 1980. He was able to work after the incident but only in a reduced capacity. The claimant’s parents consulted solicitors and on the basis of council’s opinion the action was compromised in 1987 when he received £76,000 and costs. The claimant used his award to purchase a house and then had to rely on state benefits, having previously resigned from his employment.
In 1993, the claimant consulted a different firm of solicitors who issued a claim for negligence against the initial solicitors. The defence was that the mater was statute barred. IN 1997 the claimant consulted a consultant in neuropsychiatric rehabilitation who expressed the view that the claimant was and had been since the accident a patient within the meaning of the Mental Health Act 1983. As a result the claimant sought to have the case re-opened on the basis that he had never had the approval of the court as required by RSC 0.80 and /or CPR Part 21.
HELD
(1) It was for the court and not the medical profession to decide whether or not a person had capacity.
(2) The wording of s.94 (2) of the 1983 Act provides the following: ” The functions of the judge…….. shall be exercisable where, after considering medical evidence, he is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs”. It makes it clear that the assessment of such capacity is a question of functional capacity and subjective. The court had to consider the nature and extent of the property and affairs that the person had to administer and the extent he would be likely to seek, understand and act on appropriate advice in addition to the individual’s family background and the level of support from family and others.
(3) The purpose of the court was to declare a person to be a patient under the jurisdiction of the Court of Protection. The court’s purpose was not to protect the person from the results of a wrong or imprudent decision but to remove the decision making function where the individual did not have sufficient capacity to understand, absorb and retain information that would enable him to make informed decisions.
(4) On the evidence, the claimant had been able to look after his affairs for the last 20 years with the minimum of outside assistance and at no time since 1983 had he been a patient within the meaning of the 1983 Act
Acts of a public nature undertaken by a private hospital was susceptible to judicial review
R v Partnerships In Care ltd Ex parte A11.4.02 QBD (Administrative Court)
The claimant had a severe personality disorder, which caused her to harm herself and attack others. She was treated by psychology and psychotherapy in a therapeutic setting. The claimant was detained and being treated in a private hospital run by the defendants, on a ward dedicated to working with women with a primary diagnosis of personality disorder. The local health authority funded the cost of such care.
Subsequently the hospital decided to change the focus of the patients they would treat on the ward and in future would treat women with a primary diagnosis of mental illness, the treatment principally being of medication.
The specialist psychology and psychotherapy staff left the ward and the claimant remained without the appropriate level of care and treatment.
The primary issues were (1) whether the decision of the hospital to change the focus of the ward was a decision made in relation to the exercise of a public function within the meaning of part 54.1 of the Civil Procedure Rules and therefore amenable to judicial review and (2) whether the managers of the hospital were a public body within the meaning of s.6 Human Rights Act 1998.
HELD
1 The decision to change the focus of the ward was an act of public nature. The provision of the trained staff end the hospital facilities which enabled appropriate treatment to be given was subject to a statutory duty imposed by reg.12 (1) of the Nursing Homes and Mental Nursing Homes Regulations 1984. There was also a public interest in the hospital’s care and treatment of patients sectioned under the mental Health Act 1983.
2 The Managers were exercising a public function when making their decision, within the meaning of Part 54.1 CPR and were a public authority within the meaning of S6 of the 1998 Act.
3 The claimant’s claim for judicial review should proceed as the decision was susceptible to judicial review.
A private sector provider of residential care homes did not perform a public function.
Elizabeth Heather (1) Martin Ward (2) Hilary Callin (3) v Leonard Cheshire Foundation (1) HM Attorney General sub nom R v Leonard Cheshire Foundation
[2002] EWCA Civ 366CA 21.3.02
The claimants had lived in le Court Cheshire Home, Greatham in Hampshire for over 17 years. The majority of residents were placed there and funded by either social services or the local health Authority. The Trustees made the decision in February 2001 to close the home and in its place would develop three or four smaller community based units in the surrounding towns.
The claimants challenged the decision on the basis that the Foundation exercised functions of a public nature so as to be a public authority within the meaning of s6 human Rights Act 1998 and as a consequence the Foundation owed a duty to them to comply with their right to a family life pursuant to Article 8 European Convention on Human Rights. The decision to close the home was a breach of this duty as it went against the claimant’s legitimate expectation that they and a home for life. Furthermore, the decision was made in exercise of a public function and as such was amenable to judicial review. The judge at first instance found against the claimants on these issues on which they appealed.
HELD
1. The
Local authorities remained under their duty arising under s21 National
Assistance Act 48
and retained their obligations to the claimants under Article 8, even
though they had used the LCF as
a voluntary sector provider under s26 of the 1948 Act.
2. The charity’s role did not involve the performance of public functions. The fact that it was a large organisation did not alter the nature of its activities from private to public.
3. Even though the action failed, the claimant’s argument was an appropriate issue to bring before the Court by way of judicial review.
Local authority in contempt of court
R v Southwark LBC Ex parte Agnes Bempoa
[2002] EWHC 153 (Admin)14.2.02
The applicant was unlawfully occupying a property owned by the council. An order for possession was obtained by the council in respect of the property. The applicant sought judicial review sought judicial review of the council’s failure to assess her needs and in particular for her needs for accommodation and her eligibility under s21 National Assistance Act 1948. The council’s social services department gave an undertaking to the Court not to enforce any warrant for possession until the applicant’s needs had been assessed and had been notified of the outcome. Six days later the applicant was evicted from the property by the council’s housing department. The applicant claimed that the breach of the undertaking was deliberate and intentional and breached her right to a fair trial under s 6 (1) of the Human Rights Act.
HELD
1. A breach of an undertaking given to a court was an absolute obligation and a matter of the utmost gravity, particularly when involving a local authority and the eviction of someone form their home.
2. The eviction was unlawful at common law and illegal as the local authority had given an unqualified undertaking.
3. The council had no system in place to ensure all departments concerned were aware of the existence, terms and effect of injunctions granted against or undertakings given to the court by the council.
4. The court were satisfied that the unlawful eviction was neither wilful or malicious but was as a result of more than a mere administrative oversight, namely a defective system and/or a lackadaisical approach to the court’s order.
5. The housing department deliberately made the decision not to reinstate the applicant, knowing that the eviction was a breach of the undertaking and so was contempt of court and in the face of legal advice that she should be reinstated.
6. No financial penalty would be imposed as it would punish the borough inhabitants rather than those that made the decision. The publication of the judgement and its contents would mark the gravity of the council’s contempt.
Delays in hearings before the Mental Health Review Tribunal was a breach of Article 5(4) ECHR
R v Mental Health Review Tribunal ex parte KB and others.
[2002] EWHC 639 (Admin)23.4.02
Seven cases all being heard at the same time concerned patients detained under the Mental Health Act 1983. In each case the review hearing before the Mental Health Tribunal was repeatedly adjourned. Each claimant sought judicial review of their detention and the delays as being (1) unjustified and detrimental to them and (2) in breach of Article 5(4) European Convention on Human rights, (the right to liberty and security) and (3) their cases were typical and representative of systemic inadequacies and inefficiencies in the administration of the tribunal system and (4) they had an absolute right to speedy hearing which the state was obliged to facilitate.
Over a ten-year period there had been an increase in delays. Reports from the Council of Tribunals identified the present delays had been in existence since 1998 and there was a national shortage of consultant psychiatrists to sit on the tribunals. Tribunals can only deal with a limited number of applications at any sitting and the move to detain patients in smaller units had lead to the need for more tribunals as the hearings occurred in hospital.
HELD
1. The patient is entitled to a speedy hearing irrespective of whether the case was unmeritorious.
2. When issues are raised under Article 5 and Article 6 of the Convention (right to a fair trial within a reasonable period of time), the court can assess the adequacy of resources and the effectiveness of administration of the Executive. The correct approach was to consider whether the re had been a breach of the need for a speedy hearing and then for the Secretary of State for health to discharge the onus of proof that the delay was excusable.
3. Article 5(4) had been breached in each case.
4. The increase in the number of applications was predicable because of the moves to smaller hospitals and the care in the community policy.
5. To the extent that the failure to provide speedy hearings were due to staff shortages or the pressure of work, the basic responsibility for the delays experienced by patients was that of central government.
