Fenella Morris QC

Public Procurement & State Aid

Recent work includes:

• Advising on the terms of National Framework Agreements for providers of services to the NHS.
• Advising a consortium of public authorities on a procurement process to promote innovation and more efficient service delivery.
• Acting for Coventry City Council in the judicial review proceedings brought to challenge, on state aid grounds, the loan made in respect of the Ricoh stadium.
• Acting in joint judicial review and procurement legislation proceedings concerning the award of a multi-million contract, including vires and urgent interim relief and suspension issues.
• Advising an international company on its strategy in participating in domestic procurement processes in order to comply with procurement and competition rules, and the grounds it might have for challenging decisions to award contracts to its competitors.
• Advising on whether there was a sufficiently material change in the subject matter of a contract to require a fresh procurement process.
• Advising on the state aid risks arising from a novel housing regeneration scheme for a London Borough.

Fenella is co-author of the chapter on the Implications of Brexit in the 2017 International Comparative Legal Guide to Public Procurement.  She frequently speaks on procurement and state aid topics, including for LexisNexis.

Administrative & Public

• Representing an NHS Mental Health Trust in a challenge to a decision by its local CCGs radically to restructure children’s and adolescent mental health services without due regard to the requirements of consultation, the equality duty and the procurement rules.
• Advising NHS and private bodies on innovative contractual arrangements and procurement processes for goods and services in the NHS.
• Representing a private mental health service provider in a challenge to a decision of the CQC in pursuit of new policies following Winterbourne View.
• Representing an NHS body in a challenge brought by the Metropolitan Police and individual officers to the conclusions of a homicide inquiry concerning a psychiatric patient.

Neumans LLP v The Law Society (The SRA) (2018) – This is an appeal by Neumans LLP from an order of Newey J dated 25^th September 2017.  The judge dismissed the appellant’s application made under the Solicitors Act 1974 (“the 1974 Act”) for the intervention into its legal practice to be withdrawn and ordered the appellant to pay the respondent’s costs.

The Professional Standards Authority v The Health & Care Professions Council & Benedict Doree (2017) – This is a second appeal.  It is an appeal to this court against the dismissal in the High Court of an appeal against the decision of a professional disciplinary committee.

Health Professional Standards Authority v Health & Care Professions Council (2016) – The decision of the Health & Care Professions Council’s Conduct and Competence Committee to impose a two-year Conditions of Practice Order on a paramedic, whose fitness to practise was impaired and who had pleaded guilty in court to failing to disclose a relevant duty, was remitted to the committee for re-consideration.  The Committee had failed to have regard to the public interest and had not given reasons for departing from the indicative sanctions guidelines.

R (on the application of AE & AO) v Lewisham London Borough Council (2016) – A local authority had not adopted an erroneous approach or come to an irrational conclusion in assessing that a family was not destitute so that the children were not “in need” for the purposes of the Children Act 1989 s.17.

R (Forge Care Homes) v Cardiff and Vale University Health Board [2016] EWCA Civ 26 – An appeal against the decision of Hickinbottom J, given in the Administrative Court, by which he quashed determinations of the seven appellants (all NHS Local Health Boards – LHBs – in Wales) as to the rate at which they would pay for the provision of nursing care to certain residents in care homes.

Keep Wythenshawe Special Limited & ors v University Hospital of South Manchester NHS Foundation Trust & ors [2016] EWHC 17 (Admin) – A challenge to the re-organisation of healthcare services within Greater Manchester.

YZ v NHS Trust 1 and NHS Trust 2 [2015] EWHC 2296 – Challenge by transgender patient to transfer to conditions of maximum security.

The Queen ((1) Mayfield Care Ltd (2) M Latif & S Nawaz (A Partnership)) v St Helen’s Council [2015] EWHC 1057 (Admin) – Council’s “hybrid” approach to setting a rate for residential care home fees upheld.

Ireland & Anor v Health and Care Professions Council [2015] EWHC 846 (Admin) – Application for judicial review considering the scope of the power of the Health and Care Professions Council to supplement an allegation which had already been referred by the Investigating Committee to the Conduct and Competence Committee.

R (Whapples) v Birmingham Crosscity Clinical Commissioning Group CA – Application for judicial review seeking a ruling to the effect that the Defendant has an obligation under section 3 of the National Health Service Act 2006 to provide the claimant with accommodation as part of the health care package which it should provide her free of charge under the NHS.

R (Sky Blue Sports & Leisure Ltd & Others) v Coventry City Council [2014] EWHC 2089 (Admin) – A three-day independent judicial review to consider if the loan was an unlawful use of public funds.

Yellon v NHS Commissioning Board & Bargain Dentist.Com [2014] EWHC 1994 (QB) – Claims in contract and restitution arising out of NHS contracts for the provision of dental services.

R (Tracey) v Cambridge University Hospitals NHS Foundation Trust & Ors [2014] EWCA Civ 822 – Whether the Resuscitation Council guidance on Do Not Attempt Resuscitation decisions complies with Article 8 of the European Convention, or whether there is an obligation to consult the patient before deciding not to offer resuscitation.

LH v Shropshire Council [2014] EWCA Civ 404 – An appeal about the extent of consultation required when a local authority reconfigures its day care services for citizens in its area and then decides to close a day centre.

R (Antoniou) v Central & North West London NHS Foundation Trust and Others (2013) EWHC 3055 (Admin), (2013) MHLO 98 – A claim alleging a violation of Article 2 ECHR on the grounds that an investigation into a patient’s death from self-harm while she was detained under the Mental Health Act had not been sufficiently independent.

R (Save our Surgery Limited) v Joint Committee of Primary Care Trusts and Newcastle upon Tyne Hospitals NHS Foundation Trust [2013] EWHC 439 (Admin) – Challenge to decision as to how paediatric cardiac surgery services should be reconfigured nationally, brought by company formed for purpose of litigation with protection of a PCO.

R (M) v LB Hammersmith & Fulham and others [2011] EWCA Civ 77 – Difference between responsibilities under section 117 of Mental Health Act 1983 and section 21 of the National Assistance Act 1948.

R (TN) v Secretary of State for the Home Department and Others [2010] EWHC 184 (Admin) – Treatment of immigration detainees with HIV.

R (Cardiff City Council) v Welsh Ministers [2009] EWHC 2573 (Admin) – Interpretation of ordinary residence test.

R (Compton) v Wiltshire PCT [2009] EWHC 1829 (Admin) – Decision to reconfigure hospital services upheld and test for grant of PCO considered.

Jones v Powys LHB and Others [2008] EWHC 2562 (QB) (Admin) – Claim for restitution in respect of care home fees struck out.

R (Murphy) v Salford PCT [2008] EWHC 1908 (Admin) – Challenge to refusal to provide life-prolonging drugs to claimant with cancer.

R (Compton) v Wiltshire PCT [2008] WLR (D) 123 (Admin) – Test for grant of PCO in context of hospital reconfiguration.

R (Kemp) v Denbighshire LHB [2006] EWHC 181 & 1339 (Admin); [2006] 3 All ER 141 – Costs and the payment of interest on sums recovered in judicial review proceedings.

R (Munjaz) v Ashworth Hospital Authority, Mental Health Act Commission, MIND and the Secretary of State for Health [2005] UKHL 58 – Seclusion policies – requirement of “in accordance with law” under Article 8 ECHR.

Ward v Commissioner of Police for the Metropolis & others [2005] 2 WLR 1114 (HL) – When issuing a warrant under the Mental Health Act 1983 s.135, a magistrate had no power to impose conditions in the warrant or to name the professionals to be involved in its execution.

R (I-CD Publishing) v Secretary of State [2003] EWHC 1761 (Admin) – Whether new regulations restricting commercial use of electoral register unlawful.

R (CD) v Secretary of State for the Home Department [2003] 1 FLR 979 – Termination of placement in prison mother and baby unit.

R v Richmond LBC ex p Watson and others [2002] 2 AC 1127 (HL) – Charging for after-care services.      .

R v Ashworth Hospital Authority and others ex p H Times, 10 July 2002, CA – Guidelines on procedure for health and social services authorities who disagree with decisions of the MHRT.

A v A Health Authority (QBD/Fam) [2002] 3 WLR 24 – Public law limits on inherent jurisdiction in respect of incapable adults.

R (Hall) v Mental Health Review Tribunal [2000] 1 WLR 1323 (CA) – Responsibility for patients granted conditional discharge.

Regulatory & Disciplinary

• Representing a Professor of Clinical Psychology in disciplinary proceedings arising out of her research into the quality of expert evidence given in child care proceedings.
• Frequently advising bodies as diverse as The Pensions Regulator, the Professional Standards Authority, ICAEW, and the British Psychoanalytic Council as to their vires, policies, procedures and individual decisions.
• Advising the British Dental Association on a challenge to a new Department of Health policy concerning the training of dentists.
• Representing the Royal College of Veterinary Surgeons in proceedings brought against a vet concerned with the production of bestial pornography.
• Representing a solicitor in intervention proceedings.

Ireland & Anor v Health and Care Professions Council [2015] EWHC 846 (Admin) – Application for judicial review considering the scope of the power of the Health and Care Professions Council to supplement an allegation which had already been referred by the Investigating Committee to the Conduct and Competence Committee.

The Professional Standards Authority for Health and Social Care v The General Pharmaceutical Council and another [2014] EWHC 2521 (Admin) – Appeal against a decision of the Fitness to Practice Committee of The General Pharmaceutical Council after pharmacist convicted of neglect of her own child.

Professional Standards Authority for Health & Social Care v (1) Nursing & Midwifery Council (2) Janice Harry (2013) QBD (Admin) – The court granted an interim suspension order restricting a nurse, whose registration was about to lapse, from working as a nurse in any capacity pending the final determination of disciplinary proceedings against her, which had the effect of maintaining the Nursing and Midwifery Council’s jurisdiction over her.

R (May) v Chartered Institute of Management Accountants (CIMA) [2013] EWHC 1574 (Admin) – Accountant’s challenge to disciplinary decision of CIMA Appeal Committee.

R (Rycroft) v General Pharmaceutical Council [2010] EWHC 2832 (Admin), [2011] Med LR 23 – Delay in referring disciplinary proceedings did not warrant quashing the decision to refer.

Selvarajan v General Medical Council [2008] EWHC 182 (Admin); (2008) LS Law Medical 193 – Appeal against sanction: whether delay in proceedings ever relevant to sanction.

R (Gwynn) v General Medical Council [2007] EWHC 3145 (Admin), (2008) LS Law Medical 112 – Judicial review of registrar’s decision to refer cases out of time.

Donkin v The Law Society [2007] EWHC 414 (Admin), [2007] NLJ 402 – Use of character evidence in disciplinary proceedings.

Law Society v Adcock and Moorcroft [2006] EWHC 3212 (Admin), [2007] 1 WLR 1096 – Leading case on the meaning of commission in the Solicitors’ Practice Rules 1990.

Macleod v Royal College of Veterinary Surgeons [2006] UKPC 39 – Interpretation of the Medicines Act 1968 and the Veterinary Surgeons Act 1966.

Black v Royal Pharmaceutical Society of Great Britain [2005] EWHC 2819 (Admin) – Evidence in disciplinary proceedings.

Singleton v The Law Society [2005] EWHC 2915 (Admin) – Disciplinary procedures of Law Society.

Council for Regulation of Healthcare Professionals v General Medical Council and Solanke [2004] 1 WLR 2432 – Threshold for CRHP appeals.

Human Rights & Civil Liberties

• Representing, instructed by Liberty, the victims of abuse at Winterbourne View in their claims for damages under the Human Rights Act 1998.
• Frequently advising The Pensions Regulator and other regulatory and disciplinary bodies on the impact of Article 6 and A1P1 on their procedures, policies and individual decisions.

North Yorkshire County Council, A Clinical Commissioning Group v MAG [2016] EWCOP 5 – An appeal against the refusal of an application brought by North Yorkshire County Council (“NYCC”) for authorisation for the deprivation of liberty of a man at the home where he had lived since 2006.

P v Cheshire West and P and Q v Surrey County Council [2014] UKSC 19 – Wide-ranging analysis of the meaning of deprivation of liberty under Article 5 ECHR.

Munjaz v UK (ECtHR) 2012 – Whether seclusion in a psychiatric hospital was in breach of Articles 3, 8 and 14.

R (Garbet) v Circle 33 Housing Trust and Eastbourne Homes Limited [2009] EWHC 3153 (Admin) – Whether Housing Trust a public authority under the HRA.

JE v DE, Surrey County Council and EW [2006] EWHC 3459 (Fam) – Whether accommodation in residential care a deprivation of liberty under Article 5 ECHR.

Kolanis v UK (ECtHR) App. No. 517/02 – Damages for breach of Article 5.

R v Secretary of State for the Home Department ex parte IH [2003] UKHL 59; [2004] 2 AC 253 – Whether psychiatrists public authorities under the HRA.

R v A Hospital Authority ex p RH Times, 10 July 2002 – Hospital policy of refusing patients access to condoms not breach of Article 8.

R (Pretty) v UK (ECtHR) [2002] 35 EHRR 1 – Leading case on assisted suicide: whether Suicide Act 1961 compatible with Arts. 2, 3, 8, 10 and 14 ECHR.

R v Partnerships in Care Limited ex parte A [2002] 1 WLR 2610 – Private hospital a public authority under HRA.

Court of Protection

• Representing a leading children’s hospital in a challenge to the arrangements made by it for the care and treatment of an adolescent with mental health problems outside the framework of the Mental Health Act 1983.
• Frequently advising and representing NHS bodies, often in situations of urgency, in cases concerning the medical treatment of children and adults who lack capacity, including those potentially requiring life-saving treatment.

Devon County Council v Teresa Kirk [2016] EWCA Civ 1221 – Teresa Kirk appeals against the imposition of a six month prison sentence for contempt of court.  This court heard the full appeal on 8^th November 2016.  At the conclusion of the appeal hearing we announced our decision, which was that the appeal was allowed with the effect that Teresa Kirk should be released immediately from prison.

North Yorkshire County Council, A Clinical Commissioning Group v MAG [2016] EWCOP 5 – An appeal against the refusal of an application brought by North Yorkshire County Council  for authorisation for the deprivation of liberty of a man at the home where he had lived since 2006.

Bradbury & Ors v Paterson & Ors [2014] EWHC 3992 (QB) – Application raising novel point about what the Court should do when the Official Solicitor concludes that he can no longer continue to act as litigation friend for a protected party in litigation because the anticipated source of funding for the Official Solicitor’s costs ceases to be available.

P v Cheshire West and P and Q v Surrey County Council [2014] UKSC 19 – Wide-ranging analysis of the meaning of deprivation of liberty under Article 5 ECHR.

Sandwell and West Birmingham Hospital NHS Trust v CD and others [2014] COPLR 640 – Court guidance on conduct of out-of-hours hearings concerning urgent medical treatment.

NHS v Baby X and others [2013] 1 FLR 225 – Declaration that it was lawful for clinicians to cease ventilation of a brain-damaged baby and provide him with palliative care

P v Independent Print Ltd and others [2012] 1 FLR 212 (CA) – Power of Court of Protection to restrict access of media to hearings and to restrict reporting.

M v M and others 2012 (CoP) – Capacity to manage property and affairs, make a will and marry in elderly person.

Re SK [2012] EWHC 1990 (CoP); [2013] PI QR P4 – Leading case on whether parties to personal injury proceedings may be joined to Court of Protection proceedings in order to determine issues arising in both sets of proceedings.

LB Tower Hamlets v BB and others [2011] EWHC 2853 (CoP); [2013] 1FLR1080 – Declarations in respect of BB, a deaf, learning disabled and mentally ill Muslim woman, that it was in her best interests for her marriage to be annulled, and authorising a deprivation of her liberty at a specialist placement and restricting contact with her family.

PH v A Local Authority and others [2011] EWHC 1704 (CoP) – Test of capacity and approach to be taken to conflicting expert evidence.

Re AVS v A NHS Foundation Trust [2010] EWHC 2746 (CoP and CA) – Application for declaration as to best interests in respect of medical treatment struck out where no clinician willing to provide treatment proposed.

R v C [2009] UKHL 42 – Leading case on test for capacity to consent to sexual relations.

A PCT v AH and others [2008] EWHC 1403 (CoP), [2008] 2 FLR 1196 – Leading case as to power of Court of Protection to authorise deprivation of liberty under Mental Capacity Act 2005.

A London Borough v KS and others [2008] EWHC 636 (CoP) – Whether adult lacked capacity in relation to residence, marriage, contact, sexual intercourse, gynaecological surgery and contraception, and whether, if she had capacity to decide on contact, her contacts should be restricted on the grounds of vulnerability.

T v BBC [2007] EWHC 1683 (QB) – Injunction against BBC to restrain broadcast of film concerning incapable adult.

E v Channel Four & others [2005] EWHC 1144 (Fam), [2005] 2 FLR 913 – Broadcast of documentary concerning incapable adult.

A London Borough v S [2003] 2 FLR 1235 – Exercise of inherent jurisdiction.

Re S (Adult Patient) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292 – Article 8 ECHR rights of families of incapable adults.

Re F (Adult Patient) sub nom In re F (Adult: court’s jurisdiction) [2000] 3 WLR 1740 (CA) – Extent of inherent jurisdiction.