Notable Cases

R (on the application of Mitocariu and Lazarel) v Central and North West London NHS Foundation Trust [2018] EWHC 126 (Admin)

Full Judgement at – http://www.bailii.org/ew/cases/EWHC/Admin/2018/126.html

Appleman Legal acted for the claimants both Romanian nationals who were detained under s.48/49 (on remand for offences). Both later were made subject to s.37/41 orders. Both were later discharged and deported. Appleman Legal was already representing these claimants in their mental health law matters regarding their treatment under the Mental Health Act 1983 (as amended by the 2007 Act).

There was power under the National Health Service Act 2006 to make ‘pocket money’ payments to in-patients, but that power only arose and could only be exercised for, and in connection with, functions identified under s 43. The Administrative Court further held that the discretion of a foundation trust to make payments was limited to that which was commensurate with the therapeutic treatment being provided, and there was no entitlement to payment, nor a duty to make payment.

Both claimed they were entitled to “pocket money” as they were not eligible for welfare benefits /recourse to public funds and that CNWL were under a form of duty to provide pocket money.

CNWL argued that the claimants needs were being met from petty cash but could not set out in detail what was being given and when… and that the claimants’ therapeutic needs were being met

Claim dismissed.

There is a power under NHS Act 2006 to make “pocket money” payments to in-patients, but that only arises and can only be exercised for and in connection with functions under s43 of that Act (i.e. for the provision of services provided to individuals for an in connection with the prevention, diagnosis or treatment of illness and the promotion and protection of public health”

The discretion of a Trust to make payments is limited to being commensurate with the therapeutic treatment being provided.

The Trust must take into account all the circumstances of the individual case, including financial needs and the nature of the therapeutic treatment being provided

 

PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067

Full judgement at – http://www.bailii.org/ew/cases/EWCA/Civ/2018/1067.html

Best Interests – Mental Capacity Act -Appealing a Court of Protection Decision- Transparency Orders – Anonymity in the Court of Protection-Clinically Assisted nutrition and Hydration (“CANH”)

Appleman Legal acted for PW, son of RW in a Court of Protection Case regarding CANH and Best Interests decision. We then acted for PW in appealing the Court of Protection Decision to the Court of Appeal.

In April 2018, the Court of Protection held that; (i) it was in RW’s best interests to be discharged home for palliative care and oral comfort feeding, having had his NG tube removed, and (ii) RW’s identity and the identity of the lead clinician should be protected under a Transparency Order.

RW’s family applied to the Court of Appeal for permission to appeal these decisions but this permission was refused on the basis that the Court of Protection judge had (i) correctly directed herself as to the law regarding best interests and therefore had been entitled to reach the best interest decision she did, based on the oral evidence provided to her and (ii) not erred in principle or reached a conclusion regarding the Transparency Order that was plainly wrong and therefore there were no arguable grounds for interfering with this decision.

The scope of appealing a Court of Protection decision regarding best interests or anonymity under a Transparency Order is limited to cases where the law has not been applied correctly or where the decision is wrong. However, the Court of Appeal “will be very slow” to conclude that a judge was wrong in sensitive and difficult cases.

Commissioning bodies should ensure that the proposals being considered by the Court are feasible and available. There is no purpose in a Court deciding whether a particular option is in the best interests of the patient if it is not in fact known to be available.

Courts will strongly resist any suggestion that the sanctity of life carries greater weight if P is above a “minimally conscious state”. The framework for the assessment of best interests is a universal framework, regardless of diagnosis.

Case Background

RW had end stage dementia and lacks capacity to make decisions regarding his medical treatment.

RW was admitted to hospital in September 2017 and a nasogastric (“NG”) tube was inserted for the provision of CANH. RW was ready for discharge in November 2017, however remained in a hospital setting due to a disagreement regarding his medical treatment.

In April 2018, this culminated in a one-day contested final hearing before Parker J in the Court of Protection to determine whether it was in the best interests of RW to be discharged home with an NG tube (the position supported by our client) or to be discharged home for palliative care and oral comfort feeding, having had the NG tube removed before his discharge (the position supported by the Trust and the Official Solicitor representing RW).

In addition, an application was also made by our client to name RW (on the basis that he had led a public life and would have welcomed the publicity) and the lead clinician as the decision-maker. This application was opposed by the Trust and the Official Solicitor.

Best Interests decision for RW

Parker J considered the evidence before her and concluded that the disbenefits of the NG tube in the home environment outweighed the benefits for RW and that RW continuing to receive CANH via NG in the home environment was not clinically appropriate and unsafe. She accepted that “palliation would make RW as comfortable as possible and ensure his dignity and comfort,” and therefore made a declaration that it was in RW’s best interests to be discharged home for palliative care and oral comfort feeding, having had the NG tube removed before his discharge

Court of Appeal

Our client applied for permission to appeal this decision on two key points. First, Parker J had failed to appreciate and therefore give any weight to RW’s wishes and feelings; second, Parker J had overstated the risk that having the NG tube in place would pose for RW at home and the burden this would place on him, in circumstances where the dedicated care his sons could provide that would remove or mitigate that risk.

Transparency Order

Parker J rejected our client’s submissions regarding anonymity taking the view that she could and should protect the lead clinician from being named as the clinician who gave advice and evidence on the withdrawal of life-sustaining treatment in respect of RW. She also stated that “Doctors need to be able to get on with their jobs in the interests of other patients.” With regards to RW’s identity, she concluded that whatever RW’s earlier attitude to public life, “we are in entirely different territory,” and RW was a vulnerable adult who should be protected at the end of his life.

Gohil v Gohil [2015] UKSC 61 – Supreme Court

Idnan Deen acted as the lead Solicitor in this appeal which established the principles in relation to material non-disclosure and the basis upon which an agreed financial consent order can be set aside and the case re-opened if one party has not provided full disclosure at the time of the original trial.

 

Gohil v Gohil [2012] EWCA Civ, [2013] Fam 276 (Financial Disclosure) – Court Of Appeal

Idnan Deen acted as the Lead Solicitor in this case – This case established the principle that material obtained through Mutual Legal Assistance from foreign jurisdictions for the purposes of criminal proceedings cannot be utilised or submitted as evidence in family proceedings.

 

Gohil v Gohil [2014] EWCA Civ 274 (Finances; Set Aside Consent Order)

Idnan Deen acted as the Lead Solicitor in this case which established the principles in relation to material non-disclosure and the basis upon which an agreed financial consent order can be set aside and the case re-opened if one party has not provided full disclosure at the time of the original trial.

 

Re: M (A Child) [2014] EWHC 1519 (Abduction: Child’s Objections)

Idnan Deen acted as the Lead Solicitor in this appeal against refusal of an application made by a mother pursuant to the Hague Convention 1980 and Brussels IIR for the summary return of her son to Hungary. Determining that the child’s objections must be clear and valid and ambiguous evidence from CAFCASS would not be sufficient. Appeal allowed and matter remitted for re-hearing.

This was the mother’s appeal against the court’s decision to refuse an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1989 (the Hague Convention) and Council Regulation (EC) 2001/2003 Brussels II (R) for the summary return of K (aged 14) to Hungary.

K had resided with his father since the age of 4. He was retained unlawfully in the UK when his father decided to remain in the UK permanently in order to work. The judge below exercised her discretion not to order K’s summary return on the basis of the “child objection” defence.

K had been very upset when he was interviewed through an interpreter by the High Court’s CAFCASS officer. Her evidence was that “…I have not said he objected to a return. I have described his distress and my interpretation of that distress”. It was clear that K did not know whether, if he was to return to Hungary, his father would return with him. It was clear that K wanted to remain in the care of his father.

The appeal was allowed. There was insufficient material to allow K’s stated preference to be with his father in England to be translated into an Article 13 objection to be returned to Hungary. This could not be inferred from the totality of the interview in circumstances where it was unclear to K whether such a return would mean separation from his father.

K’s views had not been heard on the key issue, so the Appeal Court was in no better position to be able to decide whether the “child objection” defence was established. The case was therefore remitted to the Family Division for urgent directions.

 

M v M [2010] EWHC 3350 (Fam) (Abduction; Article 13 (b))

Idnan Deen acted as the Lead Solicitor in this case – This case involves two children who had been removed by their father from the United States to the United Kingdom and away from their mother would neither be at grave risk nor placed in an intolerable situation if returned to her. The father’s reliance on his desperate financial situation and potential criminal charges in the US were insufficient to meet the necessarily high standard of proof required under the Hague Convention on the Civil Aspects of International Child Abduction 1980 art.13(b) to resist the mother’s application for the children’s return.