May News Round Up
‘Seriously injured say Legal System is failing them’ By John Hyde 30th May 2017.
Law Society Gazette
Severely injured people often feel unfairly untreated by the legal system. The Spinal Injuries Association polled 136 victims who had made a claim for catastrophic injury, with 2 in five saying they were unfairly treated. They were upset at the lack of power they felt during the process and at and that the legal process was not open and transparent and did not appear to have their best interests at heart.
SIA chief Sue Browning stated that there was ‘a clear divide’ between respondents who had been kept well informed by knowledgeable legal teams and those who felt their lawyers lacked these qualities.
Victims said their lives had been on hold while they waited for a resolution to their claim. One example was a paralysed man who had to ‘camp out’ in his mother’s dining room for 7 years while his claim settled.
The discount rate which deducts a percentage from compensation payments based on prospects of investing the money was changed this year from 2.5% to 0.75% claimant groups welcome this change as it ‘ensures victims are never under compensated’.
ADS v DSM  EWCOP 8
Source Court of Protection Hub: http://www.courtofprotectionhub.uk/
This was the appeal against the making of a statutory will which divided the Patient’s estate between the two sons in the ration 25/75. The appeal in this instance was allowed.
The Patient was 86 and lacked capacity. She had 2 sons A & D, their Father has died in 2009.
Following Chancery Division proceedings that were settled, the court ruled that the Patient's matrimonial home and a piece of land had been procured by A and his wife from the father by undue influence and the conveyance of both were set aside and vested in the Patient.
The Chancery order also declared that a deputy for property and affairs (MH) be appointed for the Patient and that a statutory will be applied for in the Court of Protection such that the Patient's estate be divided 50:50 between the two sons. However, the COP judge made a statutory will dividing the estate in the ratio 25:75 in favour of son D. Son A appealed, the grounds of appeal divided into two broad categories, namely:
The Court allowed the appeal. A thorough investigation of the circumstances relating to the making and approach to the settlement needed to be carried out. Such an investigation would have covered what, if any, statements the Patient made at that time about her testamentary wishes and feelings and so her intentions. The COP had judge erred in principle and further or alternatively failed to take relevant features in to account. This case reinforces the need for Judges to allow for each case to turn on its individual facts the appeal could have been avoided if the Judge had taken the time to do so.
Full text here: http://www.bailii.org/ew/cases/EWCOP/2017/8.html
Secretary of State for Justice v. Staffordshire County Council &Ors (Rev 1)  EWCA Civ 1317
Whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”), it is necessary for a welfare order to be made by the Court of Protection (“the CoP”) pursuant to the Mental Capacity Act 2005 (“the MCA”) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (“Article 5(1)”).
The appeal is by the Secretary of State for Justice (“the SoS”) from a welfare order made on 24 May 2016 pursuant to the MCA ss. 4 and 16 by Charles J as the Vice President of the CoP making the standard declarations in terms of capacity, directing where he should live and what care and treatment is required and that the restrictions in place pursuant with the care plan constituted a deprivation of liberty. He’s in his late 30s and the damages award is managed by IMTC.
The package of care was arranged and provided without any input from the local authority or any other public authority. The care is supervised by a private specialist brain injury case manager and is provided by private carers. The Council were unaware of this arrangement until it received a letter from IMTC informing the council that the arrangements for accommodation and care at the property may amount to a deprivation of liberty. The council then undertook an assessment and concluded that SRK was being deprived of his liberty for the purposes of the MCA and article 5(1).
At the hearing before Charles J the stance taken by the Secretary of State was whether the alleged deprivation of liberty arising out of the private care arrangements in SRK’s particular circumstances was not imputable to the state and therefore was not a deprivation of liberty for the purposes of the MCA
Charles J sated at paragraph 48 “It is common ground that the three components of deprivation of liberty within Article 5(1) are: (1) an objective component of confinement in a particular restricted place for a not negligible length of time; (2) a subjective component of lack of valid consent; and (3) the attribution of responsibility to the State: Cheshire West at ; Storck at  and . As was common ground before the Judge and on this appeal, the first two components are satisfied in the case of SRK and only the third component is in issue. Storck is the leading authority on the third component.” The judge then went on to consider a detailed analysis of the factual matrix in Storck having also considered in detail Baroness Hale at paragraph 37 in Cheshire West and Chester Council v P & Anor  UKSC 19:
The appeal by the Secretary of State failed - it having been raised and the SoS was joined as a respondent so that she could make submissions as to (in the words of the order):
“the circumstances and the extent to which the State is imputable in any deprivation of liberty arising out of private care arrangements in light of the potentially far reaching consequences for state bodies and the court.”
The Court of Appeal did accept that the state had a positive obligation under Art 5(1) to take reasonable steps to prevent arbitrary DOL, it did not accept that the functions of the CQC, PG and the general framework of the CJS and civil law are not totally sufficient.
Read the full text here: http://www.bailii.org/ew/cases/EWCA/Civ/2016/1317.html