Patient attends hearing to avoid human rights breach

In June, the Appeal Court gave Judgment in the case of
Brenda Lewis v Mark Gibson (2005), which is related to the
case of MH, which is also summarised on this website.

In this case, Lewis appealed against a decision confirming an
interim order which displaced her as nearest relative to her
daughter MH who had Down’s syndrome. The Local Authority had
assumed guardianship following displacement of Lewis.

The Appeal Court held in this case that: –

• In order for a Section 29 Application to succeed –
and for a nearest relative to be displaced – the nearest
relative must be shown to be “unreasonable” both at the
time of the Application and at the time of the hearing.

• It is appropriate to use guardianship – as opposed
to invoking the Courts inherent jurisdiction – where it is
specifically the limited powers of guardianship that need to be
used. However, there may come a time when much wider powers are
required (for example, to prevent the patient from having contact
with a relative) and the inherent jurisdiction would have to be
used in such circumstances and a “best interest”
declaration sought.

Also of interest was the fact that somewhat unusually the
patient, MH, had been added as a party to the proceedings. The
Court of Appeal welcomed this innovation and said that without it,
there might have been a breach of M’s rights under Article 6
or Article 8 of the European Convention on Human Rights.

Adam Hartrick
Solicitor
Hempson’s Solicitors