Month: June 2017

MHLA Conference 30 June – full speaker line-up and topics

With a week to go, there are a few places still for this:

The keynote speech will be delivered by The Right Honourable Sir James Munby, President of the Family Division of the High Court of England and Wales. Other presenters include:

Professor Penny Cooper, Barrister – ‘Clear and Understandable? A definition of ‘vulnerable’ and a framework for obtaining the best quality evidence’

Jake Kraft, Legal Aid Agency – ‘Avoiding the pitfalls in challenges under Section 21A to DOLS authorisations’

Sophy Miles, Barrister – ‘Legal Update 2016-17’

Floyd Porter, Chief Assessor of the MC Panel – ‘The new MCA accreditation’

Alex Ruck Keene, Barrister, Writer and Educator – ‘When past and present wishes collide’

Tim Spencer-Lane, The Law Commission – ‘The Law Commission’s review of the DoLS’

We hope you will join us for a stimulating day of debate and to meet like-minded colleagues. The venue is the DoubleTree by Hilton Hotel, London Islington. Lunch and refreshments will be provided. The conference fee is £120 for MHLA members; £180 for non-members.

Full information and online registration here:

 

 

Transparency Update and changes to SMT approach

The Transparency Pilot approach and that previously provided for in Serious Medical Treatment cases has now been merged (in fact, the merging took place in March but the new order has only just been published).

The new order – to be used in all cases in the COP save for committal cases – can be found here, with an unofficial Word version here.

The Vice-President has published an explanatory note, which we reproduce below:

This note is a public document.

In the schedule to my judgment in V v ANL [2016] EWCOP 21 I set out a number of points relating to the Transparency Pilot (and so the order made under it restricting reporting – the Pilot Order) and the reporting restrictions orders made in serious medical cases to which Practice Directions 9E and 13A continued to apply (RROs).

Since then the ad hoc Committee on the COP Rules has considered the amalgamation of the two approaches and as a result has recommended that a further amendment should be made to the Transparency Pilot to achieve the result that it applies to all proceedings in the COP apart from applications for committal.  I am very grateful to those who gave up their time to do this work.

This recommendation has been accepted and means that further changes will be made to the standard Pilot Order.  The new version is attached.

It is hoped that the changes make it clearer by the use of headings.

The amended Pilot Order:

  1. is still directed to those who attend or find out what happened at an attended public COP hearing, and so is not directed to the world at large which the RROs were,
  2. still does not contain a schedule identifying those who cannot be identified,
  3. contains alternatives relating to its duration (which reflect the old Pilot Order and the RROs) for selection by the judge,
  4. now does contain a list of what is not restricted by the order, which is modelled on, but does not replicate, the list in the RROs, and
  5. provides that the injunction does not apply to a public hearing of, or the listing for hearing of, any application for committal.

A change for serious medical cases is that prior notice of the making of a Pilot Order will not be given to the media.  On that topic in the Schedule to my judgment in V v ANL I said:

“To my mind proper notification to the media of the existence of the proceedings and of the date of the public hearing of a case relating to serious medical treatment and the terms of any reporting restrictions order made when a public hearing is directed is what really matters.  And when that order follows a standard process referred to in a practice direction or rules it seems to me that:

  1. there are compelling reasons why the parties bound by the reporting restrictions order need not be notified of the application (see s. 12(2) of the HRA 1998), particularly if they are defined by reference to those who attend the public hearing (or get information from those that do), and
  2. this view is supported by the approach of the Court of Appeal in X v Dartford and Gravesend NHS Trust (Personal Injury Bar Association and another intervening) [2015] 1WLR 3647 in particular at paragraphs 25 to 35.

If those bound by the order  (and so the media) have such notification they can then attend the hearing knowing, in general terms, what the case is about and the terms of the reporting restrictions order and they can challenge that order then or at another time.”

The accepted recommendation reflects those comments and other points in that Schedule relating to notification and the old Pilot Order and RROs.

This change to the Transparency Pilot is part of an important exercise that is directed to finding the best approach to achieving the result that, on a case by case basis, the COP identifies and directs the correct balance between Articles 8 and 10 and thereby correctly promotes the powerful public interests they engage and reflect.

It is recognised that it is important that cases are appropriately described when they are listed to provide information to the public at large of what they are about and when and where they will be heard. Comment on how this should be and is being done is welcomed.  As is more general comment on how the public and the media can make themselves aware, or should be made aware, that certain types of case are due to be heard and a Pilot Order has been made in them.  Such comments should be directed to joan.goulbourn@justice.gsi.gov.uk as The Secretariat for The Court of Protection Ad Hoc Rules Committee or to me or the President of the COP.

The Hon Mr Justice Charles
Vice President of the Court of Protection

Date: March 2017

 

Damages for false imprisonment: an example from immigration detention

Court of Protection practitioners may be interested in the successful challenge by Godwin Chaparadza to actions by the SSHD including, materially for our purposes although only one aspect of his successful claim, much of which is outside the scope of this post, challenges to the lawfulness of his detention between 11 April 2014 and 20 June 2014.

Mr Chaparadza had entered the UK as a student in 2004 and applied for his leave to be varied outside the immigration rules in 2011.  This had the effect of extending his leave to remain pending the decision on that application and any appeal.  The Home Secretary refused the application but did not notify Mr Chaparadza.  When in 2013 he was arrested for driving without insurance and obstruction, he was treated as an overstayer; he applied for asylum and was rejected and after he exhausted his rights to appeal he was detained while reporting in April 2014.   The Home Secretary refused to treat his further submissions as a fresh claim and he sought judicial review of, amongst other matters, the failure to comply with the notice requirement of the 2011 decision and the lawfulness of his detention.

In (very brief) summary the court found that the failure to notify Mr Chaparadza of the refusal of his application in 2011 meant that the refusal itself was of no effect: this triggered the extension of his leave and therefore there was no basis to detain him in April 2014.   The detention was, therefore, unlawful.  The Home Secretary argued that this was a technical error: the judge disagreed.  Reviewing the scope of damages for unlawful detention he awarded Mr Chaparadza £3,500 for the first 3 days on the basis of what he accepted was the shock of being detained and £7,000 for the remainder of the two month period, on the basis that Mr Chaparadza suffered no lasting harm.

In many cases where unlawful detention of P comes to light it will not be possible to demonstrate the tort of false imprisonment which involves is “the unlawful imposition of constraint on another’s freedom of movement from a particular place” (Collins v Wilcock [1984] 1 W.L.R. 1172 at 1178.)  However for those cases where this can be shown there is much to learn from the awards of damages in other jurisdictions.