Issue 4 - 7th October 2008

Tuesday 7 October 2008

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Health and Social Care Act 2008 (Commencement No 2) Order 2008, SI 2008/2497: brings into force, inter alia, certain provisions of the Health and Social Care Act 2008 on 1 October 2008, establishing the Care Quality Commission and enabling the Care Quality Commission to take preparatory steps (such as the preparation of a programme of reviews) for the discharge of functions which will be commenced on 1 April 2009.

National Health Service (Directions by Strategic Health Authorities to Primary Care Trusts Regarding Arrangements for Involvement) Regulations 2008, SI 2008/2496, commencement 3 November 2008: inter alia, amends SI 2002/2375 so as to make arrangements, in relation to health services for which a relevant Primary Care Trust is responsible.

Local Government and Public Involvement in Health Act 2007 (Commencement No 7) Order, 2008 SI 2008/2434, commencement 26 September 2008 and 3 November 2008: new provisions requiring Strategic Health Authorities and Primary Care Trusts to prepare reports on consultation on commissioning decisions.

Care Quality Commission (Membership) Regulations 2008, SI 2008/2252, commencement date 1 October 2008: contains provisions relating to the new Care Quality Commission which will replace the Commission for Healthcare Audit and Inspection, the Commission for Social Care Inspection and the Mental Health Act Commission.

Childcare Act 2006 (Commencement No 5 and Savings and Transitional Provisions) Order 2008, SI 2008/2261, commencement date 1 September 2008: brings into force a number of Childcare Act 2006 provisions on 1 September 2008.

Health and Social Care Act 2008 (Consequential Amendments and Transitory Provisions) Order 2008, SI 2008/2250, commencement date 1 October 2008: updates legislation to include references to the Care Quality Commission.

National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2008, SI 2008/2251, commencement date 6 October 2008: exempts victims of human trafficking and their immediate families from NHS hospital treatment charges.

Health and Social Care Act 2008 (Commencement No 1) Order 2008, SI 2008/2214: new powers to make directions in respect of the chair and certain non-executive members of the Council for Healthcare Regulatory Excellence.

Disability Discrimination (General Qualifications Bodies) (Relevant Qualifications, Reasonable Steps and Physical Features) (Amendment) Regulations 2008, SI 2008/2159, commencement date 24 October 2008: disabled candidates must only be assessed in relation to those components not exempted.

Health Act 2006 (Commencement No 5) Order 2008, SI 2008/1972, commencement datec1 August 2008: Primary Care Trusts must secure the provision of primary ophthalmic services from 1 August 2008.

Mental Health Act 2007 (Commencement No 7 and Transitional Provisions) Order 2008, SI 2008/1900: brings into force on 3 November 2008 provisions in order to protect mentally ill children who require electro-convulsive therapy. It provides for approved clinicians to have overall responsibility of individual cases.

Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008, SI 2008/1858, commencement date 3 November 2008: specifies the eligibility criteria for, and selection of, deprivation of liberty safeguards assessors. ¬Sets timescales within which assessments must be completed. ¬Specifies the information to be submitted with a request for a standard authorisation of deprivation of liberty. ¬Specifies the arrangements that are to apply in certain cases where there are disputes about the place of ordinary residence of a person coming within the scope of the deprivation of liberty safeguards provisions.

Childcare (Inspections) Regulations 2008, SI 2008/1729, commencement date 1 September 2008: all early years provision must be inspected by the end of July 2012.

Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2008, SI 2008/1724, commencement date 1 September 2008: early years childcare guidelines commence on 1 September 2008.

Adult Services

LGO Report dated 26th September 2008: there were serious flaws in Hillingdon LBC's care provision for an elderly man after the death of his wife. The Council failed to consider the man's wishes when placing him in a residential home. The Council has agreed to: improve its monitoring of home care packages, improve its assessments of residents on discharge from hospital, refund the excessive residential care charges of £11,800.64 levied on the basis that Mr D was a permanent rather than temporary resident; and pay compensation of £600 to the complainant and £200 to his family for the avoidable distress and inconvenience caused, and £250 to the complainant's daughter in law for her time and trouble in pursuing the complaint.

Report by the Local Government Association dated the 12th September 2008Our Lives, Our Choices -- Fit for the Future: A New Vision for Adult Social Care and Support: considers the future of social care and explores how a simplified, locally-based system of care and support would address a number of the challenges which make the current system "unsustainable". It states that the creation of a local budget for care and support, including some NHS and social security benefit funding, would allow public funds to be spent in the most flexible and effective way for local people, on the support which local people choose. It indicates that a local system with minimal thresholds of "eligibility" would make the system easier to understand and provide a sense of entitlement rather than last resort.

R v C [2008] EWCA Crim 1865: Following the successful appeal of the defendant the Court of Appeal refused the prosecution's application for leave to appeal to the House of Lords but certified that points of law of general public importance were involved in the decision, namely, (i) whether the Court of Appeal had been correct when stating that the capacity to consent to or refuse sexual activity as set out in s 30(2)(a) of the Sexual Offences Act 2003 was solely issue specific and could not be either person or situation specific; (ii) whether the Court of Appeal had been correct in stating that, for the purposes of s 30(2)(a) of the Act, an irrational fear related to a mental disorder that prevented the exercise of choice could not be equated with lack of capacity to choose; and (iii) whether the Court of Appeal had been correct in confining the meaning of s 30(2)(b) of the Act to circumstances where the complainant was physically unable to communicate her refusal to sexual activity

R (on the application of Thomas) v Havering LBC [2008] All ER (D) 18 (Sep), Judge Pelling QC (sitting as a DHCJ): The medical literature did not establish that there were unassessable or irreduceable risks that care home residents would die if transferred to alternative care homes, even when those residents were elderly and frail and suffered from dementia. Individual risk assessments were required. Both councils' decisions to close care homes were lawful.

R (on the application of Joyce) v Secretary of State for Health [2008] EWHC 1891 (Admin), Goldring J: The claimant was a registered general nurse at a nursing home for dementia patients. Following an unannounced inspection of the unit, the claimant was suspended immediately. Amongst other things the applicant had been found sleeping on duty, the unit had been found to be untidy, and medication had been left out on a shelf. Following an investigatory hearing and a disciplinary hearing, the claimant was dismissed The claimant's employer referred her to the POVA list at the Department of Health pursuant to s 82(1) of the Care Standards Act 2000. The alleged misconduct was defined as 'sleeping on duty'. On 8 August 2006, the claimant's inclusion on the list was confirmed by the Secretary of State without any findings of fact being made by her. The claimant applied for judicial review of the Secretary of State's decision on the ground that, whist she accepted that she had slept on duty, that did not amount to 'misconduct' within the meaning of s 82 of the 2000 Act. The judge found that s 82(7) did not oblige the Secretary of State to make findings of fact and that her responsibility had been limited to the forming of an opinion that the provider 'reasonably considered the worker to be guilty of misconduct'. He further found that the tribunal had to make findings of fact and that s 86(3) enabled the tribunal to consider evidence that was not available to the Secretary of State at the time of considering whether to include a person on the list. The claimant's appeal was dismissed: (1) The word 'misconduct' was not limited or qualified in any way. Parliament's intention was plainly that in order to fulfil its role as a protector of vulnerable adults and children, the tribunal should be able to consider conduct as widely as possible. Enabling the tribunal to consider any misconduct served the purpose of the legislation. Sleeping on duty could be "misconduct": R (on the application of Wright) v Secretary of State for Health [2008] 1 All ER 996 considered; (2) Having regard to the clear wording of s 86(3), the purpose and scheme of the legislation, the true nature of an appeal and the duty and ability of the tribunal to act fairly, there was no reason to limit the ambit of s 86(3) to a consideration of misconduct relied on by the Secretary of State. In the instant case, having regard to the true nature of the appeal proceedings pursuant to s 86(3), namely where the claimant, as a care worker, had appealed against the fact that she had been listed, and where the tribunal had to decide whether she had so conducted herself as to justify being listed, the tribunal had a wide discretion in its conduct of the proceedings before it and had been entitled to consider allegations of misconduct not considered by the Secretary of State.

R (on the application of Baiai and another) v Secretary of State for the Home DepartmentR (on the application of Bigoku and another) v Secretary of State for the Home Department; R (on the application of Tilki) v Secretary of State for the Home Department [2008] UKHL 53, the House of Lords (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury): Section 19(3) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 provides: '(3) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control -- (a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom, (b) has the written permission of the Secretary of State to marry in the United Kingdom, or (c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State.'

It was held that section 19 of the 2004 Act could and should be operated, consistently with its terms and with Article 12 of the Convention, in a manner which required persons subject to immigration control to give notice of a proposed marriage, enabled an appropriate authority to investigate whether the proposed marriage would be one of convenience, and provided for the withholding of permission only in cases where it appeared that the proposed marriage would be one of convenience. Section 19(3)(b) should therefore be read as meaning 'has the written permission of the Secretary of State to marry in the United Kingdom, such permission not to be withheld in the case of a qualified applicant seeking to enter into a marriage which is not one of convenience and the application for, and grant of, such permission not to be subject to conditions which unreasonably inhibit exercise of the applicant's right under article 12 of the European Convention'.

The Strasbourg jurisprudence required the right to marry to be treated as a strong right which might be regulated by national law both as to procedure and substance but might not be subjected to conditions which impaired the essence of the right. A national authority might properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is one of convenience and, if it was, to prevent it. The s 19 scheme, insofar as it restricted the right to marry, could be justified only to the extent that it operated to prevent marriages of convenience which, because they were not genuine marriages, did not earn the protection of the right. If the s 19 scheme restricted the right to marry to a greater extent than that, then it was disproportionate. Some features of the s 19 scheme depended on a political judgment which the court was ill-qualified to assess, but the court could not abdicate its function of deciding whether as a matter of law the s 19 scheme, as promulgated and operated, violated the respondents' right to marry guaranteed by art 12. The answer to that question did not turn on considerations of broad social policy but on an accurate analysis of the scheme and the law. The immigration status of the respondents was irrelevant to the genuineness of the proposed marriage, which alone could determine whether they should be free to exercise the right to marry.

R (on the application of M) v Slough BC [2008] UKHL 52, House of Lords (Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury): a person required care and attention for the purposes of section 21 of the National Assistance Act 1948 only when he required additional care beyond the provision of accommodation, essential living needs and NHS services, such as nursing care, personal care (feeding, washing or toileting), household tasks or protection from risks that a mentally disabled person could not perceive; it might be personal care, such as feeding, washing or toileting.

R (on the application of KR) v Secretary of State for Work and Pensions and another [2008] EWHC 1881 Admin, Bean J: community care grants under the social fund regulated by the Social Security Contributions and Benefits Act 1992 could be made in respect of the cost of travel needed to facilitate an exchange of residence of the children between divorced or separated parents, even where the handover journey was also the "school run": R v Social Fund Inspector and Secretary of State for Social Services, ex p Healey, Stitt (No 2), Ellison [1992] 4 Admin LR 713 applied.

X v Croatia (App No 11223/04), 17 July 2008, European Court of Human Rights (Judge Rozakis (President), Judges Vajic, Kovler, Steiner, Hajiyev, Spielmann, Jebens, and Mr S Nielsen (Section Registrar)): the applicant was awarded €8,000 damages on account of the fact that the authorities had allowed her daughter to be given up for adoption without her knowledge, consent or participation.

A v Wirral Metropolitan BC [2008] EWCA Civ 783, Court of Appeal, Civil Division (May, Keene and Smith LJJ): applying the objective test under s 14 of the Limitation Act 1980, the claimant had known at all times that his psychiatric injuries suffered as a result of sexual abuse occurring at the age of 15, in 1970, were significant. Accordingly, the judge had been wrong to find that the claimant had not known that his psychiatric injuries were significant and attributable to the abuse until 2001: A v Hoare and other appeals [2008] 2 All ER 1 applied; KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2004] 2 All ER 716 not followed;Stubbings v Webb [1993] 1 All ER 322 considered.

Children's Services

Report: Cafcass Health and Wellbeing Review, 11th September 2008, by Children and Family Court Advisory Support Service (Cafcass): a report examining the health and wellbeing of young people in care.

R (on the application of Appiatse and another) v Enfield BC [2008] EWHC 1886 Admin, Blair J: an application for judicial review against the decision of the local authority that registration was necessary to protect the claimants' child was dismissed. There had been sufficient material to justify that decision, in circumstances where there had been failures to keep appointments, and where the deterioration in the child's health was due to malnutrition, which the local authority had found was caused by the claimants' failure to be pro-active in securing appropriate medical attention.

R (on the application of G) v Southwark LBC [2008] EWCA Civ 877, Court of Appeal, Civil Division (Pill, Rix and Longmore LJJ): the local authority had been entitled to come to the decision that claimant, aged 17, was not entitled to be accommodated by the authority pursuant to s 20 of the Children Act 1989 because he required "help with accommodation" under s 17 of the 1989 Act and not "accommodation" under s 20: R (on the application of H) v Wandsworth London Borough Council [2007] 2 FLR 822 considered.

R (on the application of Liverpool CC) v Hillingdon LBC [2008] EWHC 1702 Admin, James Goudie QC (sitting as a DHCJ): where a dispute had arisen between two local authorities in relation to the responsibility for accommodating AK, a putative child and failed asylum seeker, the court held that, in all the circumstances, that responsibility lay with the claimant. Moreover, pending the outcome of an age assessment, AK fell to be accommodated as a child. AK was a national of Pakistan. He arrived into the United Kingdom illegally and with a false passport. He claimed asylum in Liverpool on 9 April 2008. The claimant took responsibility for him and carried out an age assessment. His date of birth was stated as being 4 April 1993, thereby making him 15. However, the claimant assessed him as being over 18. Based on its conclusion that AK was an adult, the claimant referred him to, and responsibility was taken by, two Home Office agencies. Thereafter, AK was accommodated, inter alia, at an adult detention facility within the defendant's area. AK continued to maintain that he was a child. On that basis, the Home Office made a referral to the defendant requiring an age assessment. On 6 May 2008, a consultant paediatrician's report, obtained by AK's solicitors, concluded that he was a child. On 7 May, AK's asylum application was dismissed. For the purposes of that application he had been treated as a child by the immigration judge. Thereafter, the Home Office urgently sought to release AK from the adult facility in which he was being held. On 9 May, he was temporarily accepted into the care of, and accommodated by, the defendant. On 13 May, AK was interviewed by the defendant. He expressed his wish to return to Liverpool. That was in conformity with a letter his solicitors had written to the claimant on 8 May. He had connections with Liverpool, but not with Hillingdon. In accordance with AK's wishes, The defendant took him to Liverpool on about 14 or 16 May and left him there. He was thereafter maintained by the claimant, albeit on the basis that he was an adult and whilst maintaining that he remained the responsibility of the defendant. AK sought a further age assessment. A dispute arose between the parties as to who had responsibility for AK.

The court ruled:
The claimant's initial responsibility for AK had to have ceased once he was removed from the area having been detained by the Home Office agencies. He then became the responsibility of the defendant once discharged within its area. However, he then left the defendant's area, fully in accordance with his undoubted wishes, and went where he clearly and firmly wanted to go, assisted by the defendant. The defendant's responsibility of AK ceased once he had retuned to the claimant's area. In those circumstances, the claimant was solely responsible for AK. Moreover, as a putative child in need within its area who required accommodation as a result of their being no person who had parental responsibility for him, he fell to be accommodated as a child.
R (on the application of S) v London Borough of Wandsworth considered.

R (on the application LW) v North Lincolnshire Council [2008] All ER (D) 34 (Jul), Judge Mackie QC sitting as a judge of the High Court: an application for judicial review was allowed, where a decision of the defendant local authority that the claimant, aged 16, had not been accommodated pursuant to s 20 of the Children Act 1989 after his 16th birthday, and therefore, that he was not an eligible child who was entitled to a personal advisor or a pathway plan, had been unlawful. The authority had sought to fulfil its duty under s 17 of the Act, in circumstances where it had actually owed a duty under s 20.


Consultation Paper: The Education (Independent School Standards) (England) (Amendment) Regulations 2008, 29 September 2008, Department for Children, Schools and Families: consults on proposed changes to regulations governing independent schools. Consultation ends on 7 November 2008.

Consultation Paper: A New Way Of Handling Parents' Complaints About School Issues, 26 September 2008, Department for Children, Schools and Families: consults on proposals for a fairer way to handle parents' complaints to schools. Consultation ends on 21 November 2008.

Consultation Paper: Legislating for Sure Start Children's Centres, 12 September 2008, Department for Children, Schools and Families: consults on creating a statutory legal basis for Sure Start Children's Centres. Consultation ends on 6 November 2008.

R (on the application of P) v Haringey BC [2008] All ER (D) 81 (Sep), 15 September 2008, David Elvin QC (sitting as a DHCJ): an application for judicial review of a decision of the local education authority that the claimant had lodged his appeal to the independent appeal panel out of time was allowed. On the proper construction of reg 5(6)(b) of the Education (Pupil Exclusions and Appeal) (Maintained Schools) (England) Regulations 2002, SI 2002/3178, a time limit of 15 school days was not conducive to certainty, as the number of school days could vary from school to school. Parliament could not have intended the notice period to vary in that manner. Accordingly, an order that the local authority had acted unlawfully in refusing the appeal would be made.

Islington LBC v Special Educational Needs and Disability Tribunal [2008] All ER (D) 120, Judge Waksman QC (sitting as DHCJ): the child, aged 11, suffered from learning difficulties and required further measures of an educational kind to be taken. At the primary school he attended educational measures were taken. The local education authority decided to conduct an assessment of the child under s 323 of the Education Act 1996. The authority declined to make a special educational needs (SEN) statement but instead made a notice in lieu of a SEN statement, which meant that the authority was not obliged to make sure that the recommendations made in the notice were met by the school. The mother appealed against the authority's refusal to make a SEN statement. The authority proposed to call two witnesses before the Special Educational Needs and Disability Tribunal, one of whom was a senior educational psychologist, C, and the second was the deputy head of the child's primary school, S. At that hearing, the mother informed the tribunal of the secondary schools that she wished her child to go to and that he had no confirmed secondary school place. C told the tribunal that the child had to sit a test to gain a place at one school and that there was an appeal at another school pending. The tribunal then stated that the child needed adequate and appropriate provision and that a placement of him needed to be carefully considered. Accordingly, the tribunal ordered that a SEN statement was to be made. A written decision was sent to the parties four days later. In its written decision the tribunal stated its concerns about the child having to sit tests and that in absence of concrete evidence of which school the child would be going to, a SEN statement had to be ordered. The authority appealed against that decision. The appeal was allowed.
The tribunal had to have regard to something more than the provisions that had been made by the primary school as the child was due to leave that school. Some regard had to be made to the provisions likely to be available at the mainstream secondary school. That did not require an identification of the school, but there needed to be an analysis of the provisions that would be made. The tribunal had focused too intensely on which particular school the child would attend and on the basis that it was not known what school he would go to, the tribunal had concluded that it was not appropriate to conduct the test set out in s 324 of the 1996 Act or para 8.2 of the Code of Practice. Since the tribunal had felt that the school needed to be sorted out immediately, the obvious course was to adjourn the hearing or to ask the authority to make inquiries. The tribunal had taken the view that nothing further could be done and it had therefore ordered a SEN statement without hearing the further evidence from C and S. In all the circumstances, the tribunal had not applied the s 324 test or the test contained in para 8.2 of the Code of Practice. The proceedings before the tribunal had been manifestly unfair. It was clear that the tribunal had made its mind up and that nothing was going to change it. Owing to the tribunal's anxiety with regard to the child's school placement, it had relinquished the necessary process for a fair hearing.

A and another v North Yorkshire CC [2008] All ER (D) 32 (Sep), Judge McKenna sitting as a judge of the High Court: the Special Educational Needs and Disability Tribunal had been entitled to come to the conclusion that special educational needs of the claimants' daughter, as a result of a rare condition called 'Tetrosomy', could be meet at a special needs school maintained the local authority as opposed to an independent specialist language school, preferred by the claimants. In the circumstances of the case, it could not be said that the tribunal had not given reasons for its conclusions. The issue of placement was one for the tribunal to determine and the conclusion which they had come to was plainly open to it on the evidence which it had heard.

B and another v Hammersmith & Fulham London Borough Council [2008] All ER (D) 65 (Aug), Dobbs J: the Special Educational Needs and Disability Tribunal's decision upholding the respondent local authority's conclusion that the child should attend WH school would be upheld as the parents, on appeal, could not identify any specific explicit representation by the authority that could be said to have misled the tribunal. The child in issue was 12 years old and suffered from verbal dyspraxia. Pursuant to a statement of special educational needs she attended BH school where staff specially trained in linguistics taught her. In April 2007, the respondent local authority issued an amended statement that concluded that, in all the circumstances, the child should attend WH school. The child's parents, unsuccessfully challenged the finding that the child should attend WH. In dismissing the parents' appeal the Special Educational Needs and Disability Tribunal effectively concluded that the child did not need the level of support offered by BH and that WH was suitable. The parents appealed. They argued, inter alia, that the authority had misled the tribunal on the issue of the training that the staff of WH school had had in relation to learning difficulties exhibited by the child. The appeal was be dismissed.

R (on the application of H) v Special Educational Needs and Disability Tribunal
Citation [2008] All ER (D) 50 (Aug), Michael Kay QC (sitting as a DHCJ): the Special Educational Needs and Disability Tribunal's dismissal of an appeal against the local education authority's decision to name a school catering for children with 'moderate learning difficulties', in respect of the claimant's son, was not defective on the grounds of bias or collusion, error of law, breach of natural justice, and perversity or irrationality.

R (on the application of Watkins-Singh) v Governing Body of Aberdare Girls' High School, [2008] EWHC 1865 Admin, Silber J: the defendant governing body of the school which the claimant attended was wrong to refuse the claimant's request for an exemption from the school's uniform policy to wear an item of jewellery, namely a 'Kara', a plain steel bangle of about one-fifth of an inch in width, on the grounds that it amounted to: (i) indirect discrimination on the grounds of race under the Race Relations Act 1976, as amended, and religion under the Equality Act 2006; and (ii) a breach of the obligation under s 71 of the 1976 Act, namely to adopt, maintain and to enforce a uniform policy which had 'due regard' to the need to 'eliminate unlawful racial discrimination' and to 'promote equality of opportunity and good relations between persons of different racial groups'. A very limited exception would be created by allowing the claimant to wear the Kara at the school. It was not obvious that there would be other pupils of whatever religion or race that would be able to invoke the exception. First, on the evidence, the wearing of the Kara was a matter of exceptional importance as an expression of the claimant's race and culture. Secondly, the Kara was unobtrusive in nature, and very different from garments such as the Moslem niqab or jihab which had been subjected to the court's scrutiny in previous cases. As regards the claimant's second submission, the defendant had totally failed to appreciate its obligations under s 71 of the 1976 Act. Whether the authority had failed to advise the defendant on s 71 or otherwise, there had been no reference to it at all in the decision-making process: R (on the application of SB) v Governors of Denbigh High School[2006] All ER (D) 320 (Mar) considered; R (on the application of Playfoot) v Governing Body of Millais School [2007] All ER (D) 234 (Jul) considered; R (on the application of X) v The Headteacher of Y School [2008] 1 All ER 249 considered.

R (on the application of E) v Governing Body of the Jews Free School and others
R (on the application of E) v Office of The Schools Adjudicator and others
 [2008] EWHC 1535 Admin, Munby J: a decision the Governing Body of the Jews Free School (JFS) informing the claimant, E, that JFS was unable to offer his son, M, who was of mixed Jewish and (through the maternal line) Italian ethnic origin, a place at the school on the ground that they had not received evidence of M's Jewish status, and on the ground that it would not be possible to consider M for a place unless and until all those applicants whose Jewish status had been confirmed and had been offered places, had not been directly or indirectly discriminatory: (1) in the circumstances, there had not been any direct race discrimination. The discrimination had been based on religion, not on race or ethnic origin, and had not been discrimination on grounds of race (ethnic origin) merely because the relevant religious belief had defined membership of the group by reference to descent; (2) the admissions policy of JFS could comfortably be justified as being, within the meaning of s 1A of the Act, a 'proportionate means of achieving a legitimate aim'. Accordingly, the claim based on alleged indirect race discrimination would fail; (3) in the circumstances, JFS, despite the good intentions embodied in its Race Equality Policy, and despite the work which had obviously gone into it, had failed to comply in full with the requirements of s 71 of the Act. Accordingly, E, if he wished, would be entitled to a declaration to that effect. But the breach had not entitled him to any other relief against JFS. For it was quite idle to imagine that the fullest and most conscientious compliance with s 71 would have led to any difference either in the crucial part of JFS's admissions policy or in its application in M's case; (4) in all the circumstances, there had been no material unfairness on the part of the Panel, and neither E nor M had suffered any prejudice. Whether looked at in detail or assessed in the round, E had a full and fair hearing before the Panel. Nothing had happened to undermine the overall fairness of the proceedings. E had been quite unable to demonstrate that he or M had suffered any possible prejudice as a result of anything that had either happened or had not happened.


Report: End of Life Care Strategy -- Promoting High Quality Care for All Adults at the End of Life, 16 July 2008, Department of Health: the first End of Life Care Strategy for adults in England. Backed with £286M in funding, the aim is to provide people approaching the end of life with more choice about where they would like to live and die, encompassing all adults with advanced, progressive illness and care given in all settings.

Private and Voluntary Health Care (England) Amendment Regulations 2008, SI 2008/2352, commencement date 1 October 2008: amends SI 2001/3968 so as to outline the meaning of hyperbaric therapy, which is the administration of oxygen (whether or not combined with one or more other gases) through a mask to a patient who is in a sealed chamber which is gradually pressurised with compressed air. This therapy is carried out by or under the supervision or direction of a medical practitioner.

Guidance: NICE Issues New Public Health Guidance On Identifying People at Risk of Dying Prematurely, 25 September 2008, National Institute for Health and Clinical Excellence (NICE): New NICE guidance has been released to help local authority and health projects to identify people at risk of dying prematurely.

Guidance: The National Child Measurement Programme - Guidance for PCTs: 2008/09 School Year, 4 August 2008, Department of Health (DH): new guidance urging primary care trusts to feedback results of the National Child Measurement Programme to parents.

Awomolo v Nursing & Midwifery Council [2008] All ER (D) 95 (Sep), Cranston J: it was established law that particular respect had to be given to specialist panels or tribunals that had had the benefit of hearing the evidence first hand. In the instant case, no error of law could be seen in the decision of the respondent's professional conduct committee. There had been ample evidence on which to base its decision that the balanced and proportionate sanction for the nurse's prior dishonest conduct was his removal from the register.

Lamming v General Medical Council [2008] All ER (D) 92 (Sep), Judge Inglis (sitting as a DHCJ): it was established law that particular respect had to be given to specialist panels or tribunals that had had the benefit of hearing the evidence first hand. In the circumstances of the instant case, it could not be said that the respondent body's fitness to practise panel had erred in imposing the sanction of erasure from medical register on the appellant doctor for his dishonest appropriation of wages.

R (on the application of Ross) v West Sussex PCT [2008] All ER (D) 63 (Sep), Judge Grenfell (sitting as a DHCJ): where the claimant sought judicial review of the defendant Primary Care Trust's refusal of his application for funding for life-prolonging cancer drugs, the court held that that decision had been unlawful on the basis, inter alia, that the test of exceptionality prescribed by the defendant was in effect a test of uniqueness. It was not a policy for exceptional cases because a person was automatically disqualified if he could be likened to another: in order to qualify, a patient had to be able to show, in effect, that he was unique, rather than merely exceptional in the ordinary sense of the word as being 'of the nature of or forming an exception; out of the ordinary course, unusual, special.' In practical terms, in a case such as the claimant's, it was impossible to show uniqueness, so that the policy was incapable of fulfilment because (i) it would always be possible for another patient to emerge who was appropriately comparable; and (ii) the comparison depended upon how widely a label was drawn by the defendant, for example whether the claimant should be compared to any cancer patient who suffered unpleasant side effects or to something more specific. The decision to refuse funding on the ground of exceptionality was logically flawed and, on the evidence before the panels, ought to have been upheld on an ordinary reading of the term 'exceptional'. Furthermore, the review panel had fallen into error in determining the issues of clinical and cost effectiveness. Accordingly, the decision of the defendant was one that no reasonable authority could have made on the application before it, and the decision would be quashed.

Re M v South West London and St George's Mental Health NHS Trust [2008] All ER (D) 63 (Aug), Court of Appeal (Mummery, Richards and Stanley Burnton LJJ): where the claimant, who had a long history of mental illness, had been detained under s 2 of the Mental Health Act 1983, a decision taken subsequently to detain her under s 3 of the Act was lawful. Both the examination and interview carried out by the doctor and social worker respectively had been carried out in accordance with ss 12(1) and 13(2) of the Act. There was no basis upon which the decision to proceed was unreasonable or had rendered the examination and interview non-compliant with statute. Cross-examination of the doctor and social worker was refused.

St Helens Borough Council v Manchester PCT [2008] EWCA Civ 931, Court of Appeal (May, Scott Baker LJJ and Sir Peter Gibson): P was a woman in her 30s who suffered from disassociative identity disorder. The annual cost of her care was around £675,000. The claimant local authority had been involved since P's birth in 1975, and, in 1978, a care order was made in relation to her. In 1999, there was a recommendation that she should live in her own property with 24-hour care. Since April 2000, she attended weekly psychotherapy and had three carers during the day and two during the night. the carers provided support with daily living, including taking medication, and in dealing with her aggressive and sometimes self-harming behaviour. In November 2006 the defendant trust undertook a continuing healthcare assessment of P. It concluded that P's needs were not primarily health care needs. The claimant claimed that the care was not such that their social services department should be required to undertake it. The claimant contended that the case was one in which there were conflicting decisions of two public authorities, each exercising statutory powers, and that the court should decide for itself the substantive question of whether P's care needs were its responsibility or the trust's responsibility. The court held that under the relevant regime, health care was to be provided by the defendant trust as delegate of the Secretary of State and community care services were to be provided by the local social services authority. There was a dividing line between the two and no gap. The dividing line, depending on the facts of the particular case, depended upon whether the person's care needs were primarily health care needs and, by contrast, whether they were of a nature which a local authority, whose primary responsibility was to provide social services, could be expected to provide. The defendant trust, as the delegate of the Secretary of State, was, under the statutory framework under consideration, the primary decision maker, whose decision was amenable to orthodox judicial review. It was not amenable to a fully-fledged substantive challenge which the court itself had to decide. There was one primary decision maker in the instant case, rather than two, and there was no head-on collision between the two comparable decisions. It was not correct that the social services authority had an equivalent or equivalently structured decision-making process which could hold its own against those of the Secretary of State, through the defendant trust, under the 2006 Act. It followed that a challenge to the defendant's decision would be by orthodox judicial review and the court was not required to determine the conflicting substance of the two decisions of equivalent standing.

Kulkarni v Milton Keynes Hospital NHS Trust [2008] EWHC 1861 QB, Penry-Davey J: the claimant's application to continue the injunction restraining a disciplinary hearing from taking place, pending his application for declaratory relief in respect of his entitlement to legal representation at the hearing was dismissed, and the declaratory relief refused, on the basis that the claimant had not demonstrated that the refusal to permit legal representation was either irrational or unreasonable.

R (on the application of B) v South Region Mental Health Review Tribunal [2008] All ER (D) 86 (Aug), Dobbs J: the Mental Health Review Tribunal (MHRT) had the power to admit a nurse to attend a mental health patient's review hearing whether under r 21 or r 22 of the Mental Health Review Tribunal Rules 1983, SI 1983/942. The Rules conferred a very wide discretion upon the MHRT. In addition, counsel representing the patient could object to the admission of a particular person to sit in the hearing both prior to and during it; the 'private' nature of the hearing would not necessarily be undermined; and further, unless unintelligible or irrational reasons were given by the MHRT for deciding in favour of admission, no procedural unfairness would be caused to the patient concerned.

I v Finland (App No 20511/03), European Court of Human Rights (Judge Bratza (President), Judges Garlicki, Mijovic, Thor Bjorgvinsson, Sikuta, Hirvela and Poalelungi, and Mr T Early (Section Registrar): the applicant was being treated for the HIV virus at the hospital at which she worked. Following her complaint that the hospital had failed to prevent unauthorised access to her medical records, the European Court of Human Rights held that that failure had violated her right to respect for her private life, contrary to art 8 of the European Convention on Human Rights. Accordingly, the applicant was entitled to just satisfaction in respect of non-pecuniary loss pursuant to art 41 in the sum of €8,000.

R (on the application of T) v Secretary of State for Justice [2008] EWHC 1707 Admin, Bean J: a decision by the Secretary of State to recall a patient who had been conditionally discharged by the Mental Health Review Tribunal (MHRT) would only be lawful if the decision-maker had reasonably believed when making that decision, that something had happened since the decision of the MHRT, or information had emerged which had not been available to the MHRT, of significance to justify recall. The rule of law required that effect should be loyally given to the decisions of legally constituted tribunals in accordance with what they had decided. No one could knowingly act in a way which had the object of nullifying or setting at nought the decision of such a tribunal. The regime prescribed by Part V of the Mental Health Act 1983 would plainly be stultified if that occurred.

Rengarajaperumal v General Medical Council [2008] All ER (D) 238 (Jul), Ouseley J: the appellant doctor's appeal, against the finding of the respondent body's fitness to practise panel that he should be subject to a nine month supervision order as a result of findings that his practise had been impaired as a result of his misconduct and his deficient medical performance, was dismissed as in the circumstances there was nothing irrational or unlawful in the panel's decision.

R (on the application of Kay) v Health Service Commissioner [2008] All ER (D) 154 (Jul), Dobbs J: applying settled principles, the question of relevance was for the ombudsman under the Health Service Commissioners Act 1993 to decide; it went too far to say that all material save that which was obviously irrelevant should be disclosed so that the parties could make submissions as to its relevance. Section 15 of the 1993 Act, whereby disclosure of information obtained in the course of or for the purposes of any investigation was prohibited except for the purposes of the investigation and any report to be made in respect of it, applied to those receiving information from the Ombudsman. If that was wrong then, having regard to the wide procedural discretion afforded to the Ombudsman, they were entitled to require an undertaking that information disclosed would only be used in the investigation in question so as to ensure compliance with the statutory scheme.

Sinha v General Medical Council [2008] All ER (D) 63 (Jul), Irwin J: the decision of the respondent's Fitness to Practice Panel to erase the doctor from the medical register, on the basis of sexual misconduct, was upheld as the doctor's complaints concerning the inadequacy of his legal representative before the panel was insufficient to found a basis for appeal. Further, on the facts, it could not be said that the doctor's hearing had been unfair for relying on evidence that had been gathered in support of a failed criminal trial as there was no actual evidence of collusion between the witnesses as alleged.

R (on the application of Compton) v Wiltshire PCT [2008] EWCA Civ 749, Court of Appeal (Waller, Buxton and Smith LJJ): previous authority concerning protective costs orders (PCO) was not to be read as if it was part of a statute. The reference to 'exceptionality' therein was not an additional criterion, but a prediction as to the effect of applying the other principles. Furthermore, the requirement that the issues raised should be of 'general' public interest did not mean that it had to be of interest to all the public nationally. It was a question of degree and a question that judges could be expected to resolve. The application should not be treated as a CPR 23.8(b) application simply because a party recognised the reality, i.e. that an application for a PCO would be dealt with on paper, and sought that that should be done contemplating refusal. To come within that provision, the agreement had to be clear and binding on both parties. However, the fact that the application came within CPR 23.8(c) would not alter the test to be applied, namely that compelling reasons were required to set aside a PCO. A majority of the court commented that a complete failure to give reasons for a PCO ought to amount to compelling reasons to review the same, and gave guidance on the approach to PCO's on appeal to the Court of Appeal: R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] 4 All ER 1 explained.

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