Aswini Weereratne QC

a.weereratne@doughtystreet.co.uk

Year of Silk

2015

Year of Call

1986
Aswini Weereratne QC
Profile

In practice at Doughty Street Chambers since 1991, Aswini has a reputation for “cutting through to the heart of complex cases” and turning around “large volumes of work in short periods of time” (Chambers and Partners 2016).

 

Aswini is an acknowledged expert in human rights, mental health and capacity law, focusing, in particular, on the protection of vulnerable adults, children and young people in many different spheres of life. She utilises her expertise in a wide range of practice areas and cases, in contentious and non-contentious matters. For example, health and welfare cases in the Court of Protection, and concerning public and private law issues, actions against state and private bodies such as sporting bodies, including assault and unlawful detention claims, historic child abuse claims, inquests and inquiries, reporting restrictions and international law.  She also drafts interventions for NGO’s in cases before the higher courts and advises on proposed legislation, most recently on the issue of female genital mutilation. 

 

In addition, she has a strong background in investigatory, and regulatory work and is a qualified mediator.  Aswini sits as a deputy chair of the Investigating Committee of the General Pharmaceutical Council.  She has chaired and produced published reports for six independent inquiries into homicides by patients within mental health services.  She has recently represented the Child Migrants Trust in the investigation into overseas child migration by the Independent Inquiry into Child Sexual Abuse, chaired by Professor Alexis Jay.

 

Aswini is currently coordinating a strategic litigation project with Validity, formerly the Mental Disability Advocacy Centre. The project aims to challenge the removal of legal capacity from vulnerable adults in various European jurisdictions, by the application of international human rights, including the UN Convention on the Rights of Disabled Persons. Through her child abuse work she has a strong interest in the protection of children from exploitation and harm, in particular, de-institutionalisation and the development of alternative care models in South Asia.

 

Her most recent cases include N v ACCG and others [2017] AC 549 in which the Supreme Court considered the existence of a jurisdictional boundary between the Court of Protection and the Administrative Court, and the powers of the Court of Protection.

 

She is able to accept instructions under the Direct Access scheme. 

 

What the Directories say

Recommended in Chambers and Partners (Court of Protection and Civil Liberties) and the Legal 500.

 

(Chambers and Partners)

 

She is well respected for her ability to engage with difficult courtroom topics in a calm and persuasive manner…..As astute as they come in Court of Protection matters. Her ability to cut through to the heart of complex and difficult cases is remarkable, as is her ability to turn around large volumes of work in very short periods of time. The safest of safe hands."  

 

 "She's very persuasive and is a very clear advocate.” (Civil liberties)

 

In 2015:   "She is a thoughtful, dynamic lawyer and a formidable advocate. Her attention to the detail of a case is second to none."

 

(Legal 500).

 

An expert in mental health law.

 

Publications

Consultant editor, Halsburys Laws of England, Mental Health and Capacity. New volume published in 2013 and 2014.

 

Limitation in historic child abuse cases post Hoare" – the cart before the horse” PI Focus, December 2010, APIL

 

Safeguards for informal patients”: Journal of Mental Health Law, 20 (2010) 71.  Special issue on “A model law fusing incapacity and mental health legislation – is it viable; is it advisable?

 

Chapter on mental health in Crime and Human Rights.   Published by OUP in December 2009

 

Lead author of Butterworth’s New Law Guide to the Mental Capacity Act 2005 published in April 2008 by Lexisnexis.

 

Contributed to: "International Criminal Court's Trust Fund for Victims. Analysis and options for the development of further criteria for the operation of the trust fund for victims." A discussion document. Published by Redress, Dec. 2003.
 

Author of six reports published following independent inquiries into homicides by patients within mental health services. 

 

 

Mental health and Court of Protection

Aswini has a substantial mental health and Court of Protection practice, acting for all parties and regularly instructed by the Official Solicitor, including in appeals, and in a variety of fora.  She has a longstanding and acknowledged expertise in mental health and mental capacity law.  She is the consultant editor on mental health for Halsbury’s Laws and lead author of Butterworth’s New Law Guide to the Mental Capacity Act 2005.  Her cases are all complex cases of their kind, giving rise to a myriad of issues: the jurisdictional overlap between the Court of Protection and the Administrative Court, removal of P from family and issues of deprivation of liberty (article 5 ECHR) or interference with private and family life (article 8 ECHR), the Hague Convention on the International Protection of Adults, the provision of treatment under the MHA or MCA and advance decisions, the use of the inherent jurisdiction of the High Court, conditions of detention and degrading treatment under article 3 ECHR, and access to justice under article 6 ECHR/the common law.

Cases include:

  • N v ACCG and others [2017] AC 549 the issue for the Court of Appeal concerned the boundary between the COP and the Administrative Court.  The appeal concerned the jurisdiction of the COP faced with determination under the HRA 1998 and where the relevant public authority was only willing to provide one option in P’s best interests.
  • North Yorkshire v MAG [2016] EWCOP 5, an appeal considering issues arising from Re N (an Adult)(above) and the availability of options against the backdrop of a willing public authority, delays in the provision of suitable accommodation, the suitability of conditions of deprivation of liberty, and the violation of article 5 ECHR. Leading counsel.
  • Health Service Executive for Ireland v PA and others [2015] 3 WLR 1923, a case concerning the application of schedule 3 of the Mental Capacity Act 2005 and the reciprocal obligations of states under the Hague Convention on the International Protection of Adults, including compatibility with domestic and ECHR law. Considered domestic law obligations in respect of the recognition, enforcement and implementation of protective measures imposed by a foreign court.
  • London Borough of Camden v JN (by his LF the OS) and others [2015] EWCOP (Bailii), a case concerning the overlap between the Mental Health Act 1983 and Mental Capacity Act 2005 (MCA), and the validity of an advance decision purporting to refuse antipsychotic medication.  There was also an issue as to whether JN lacked capacity to consent to medication due to the undue influence of his mother or an impairment within the meaning of the MCA. 
  • Somerset County Council v MK [2014] EWCOP B25, acted for MK seeking and obtaining findings of violations of articles 5 and 8 of the Convention.  The judgment is highly critical of the conduct of the local authority. 
  • NCC v WMA and MA [2013] EWHC 2580 (COP). Complex welfare case concerning the best interests and article 8 private and family life of a young autistic man.
  • MS v UK (2012) 55 EHRR 23. An important decision of the European Court of Human Rights that a mentally ill man was detained in a police cell without treatment for his mental illness in violation of article 3. Leading counsel.
  • CM v Derbyshire Healthcare NHS Foundation Trust and another [2011] UKUT 129 (AAC): complaint by a patient that he had been wrongly detained in hospital for his chaotic lifestyle and drug use was upheld.
  • London Borough of Hillingdon v Steven Neary (by his LF the OS) and Mark Neary [2011] EWHC 1377 (COP), 4 All ER 584: The court made declarations of unlawfulness under articles 5 and 8 and gave guidance on the approach to best  interests assessments under schedule A1 of the MCA; and see the decision regarding press reporting: [2011] EWHC 413. The first COP case in which the press were permitted to be present throughout, and then to report the proceedings, naming Steven Neary.
  • AH v West London Mental Health NHS Trust and another [2010] UKUT 264 (AAC) and [2011] UKUT 74 (AAC): a successful application for a public tribunal hearing by a patient at Broadmoor detained under sections 37/41 MHA which set guidelines for such applications, and was the first domestic case to rely on the UN Convention on the Rights of Disabled Persons.
  • LBE v SK and others [2008] EWHC 636. Welfare of incapacitated adult of Afghani origin. Issues of care, residence, sexual relations and marriage.
  • E v Channel 4 and News International Limited  [2005] EWCH Fam, 2 FLR 913, EMLR 30.  Acted for the defendants resisting an attempt to restrain the broadcast of a TV programme about the care and services provided for an incapacitated woman with multiple personalities.
  • R(H) v Secretary of State for the Home Department [2004] 2 AC 25 House of Lords. Acted for restricted patient who was unable to take advantage of a decision of the First Tier Tribunal to discharge him from high secure hospital for lack of community services.

 

Inquiries and Inquests

Aswini has been engaged as chair in six independent inquiries commissioned by various health authorities into homicides committed by patients within specialist mental health services and authored six published reports into the same. She drafted an intervention on behalf of the REDRESS Trust in an application for an independent public inquiry into the torture of Iraqi detainees imprisoned in Iraq by the British military.

She was instructed on behalf of the Child Migrants Trust in the Independent Inquiry into Child Sexual Abuse (formerly the Goddard Inquiry, and now chaired by Professor Alexis Jay). These hearings have just been completed and were the first substantive hearings held by this body.  She also acts in inquests into the deaths of vulnerable people in prison, hospital and social care settings.

Cases and inquiries include:

  • R (on the application of Mousa) v Secretary of State for Defence [2011] EWCA civ 1334:  intervention on behalf of the REDRESS Trust in this application for an independent public inquiry into the torture of Iraqi detainees imprisoned in Iraq by the British military. The intervention drew upon standards of independence set in international and regional human rights instruments and cases.

Chair of following homicide inquiries under Department of Health guidance (HSG(94)27) and author of associated reports: 

  • Inquiry into the Care and Treatment of Dennis Foskett. 2006.  North East London Strategic Health Authority. Inquiry into the Care and Treatment of S. 2003. South West Peninsula Health Authority (SWPHA)
  • Inquiry into the Care and Treatment of H. 2003.  SWPHA
  • Inquiry into the Care and Treatment of Simon Coombe. 2001.  Dorset Health Authority.
  • Inquiry into the Care and Treatment of David McMahon.  2001.  Dorset Health Authority.
  • Inquiry into the Care and Treatment of Shane Bath.  1999.                 
  • Ashworth Hospital Public Inquiry, 1999: Junior Counsel for Ashworth Special Hospital.  The inquiry considered the security consideration and care of severely personality disordered patients in high secure hospitals.
  • Inquiry into the Care and Treatment of Darren Carr. 1997:  counsel to the inquiry, chaired by Professor Genevra Richardson.

International law

Aswini advises and acts in cases raising issues such as the right to life, torture and inhuman and degrading treatment, deprivation of liberty, private and family life, access to justice, removal of legal capacity.

Aswini is currently coordinating a major strategic litigation project with the Mental Disability Advocacy Centre. The project aims to challenge the removal of legal capacity from vulnerable adults in various European jurisdictions, by the application of international human rights, including the UN Convention on the Rights of Disabled Persons.

She contributed to:"International Criminal Court's Trust Fund for Victims. Analysis and options for the development of further criteria for the operation of the trust fund for victims."   Published by Redress, Dec. 2003.

Cases include:

  • Health Service Executive for Ireland v PA and others [2015] 3 WLR 1923, a case concerning the application of schedule 3 of the Mental Capacity Act 2005 and the reciprocal obligations of states under the Hague Convention on the International Protection of Adults, including compatibility with domestic and ECHR law. Considered domestic law obligations in respect of the recognition, enforcement and implementation of protective measures imposed by a foreign court.
  • MS v UK (application no. 24527/08), 3 May 2012. A decision of the European  Court of Human Rights that a mentally ill man was detained in a police cell in violation of article 3 ECHR. Leading counsel.
  • R (on the application of Mousa) v Secretary of State for Defence [2011] EWCA civ 1334 intervention on behalf of the REDRESS Trust in this application for an independent public inquiry into the torture of Iraqi detainees imprisoned in Iraq by the British military.  The intervention drew upon standards of independence set in international and regional human rights instruments and cases.
  • AH v West London Mental Health NHS Trust and another [2010] UKUT 264 (AAC) and [2011] UKUT 74 (AAC): a successful application for a public tribunal hearing by a restricted patient detained at Broadmoor under sections 37/41 MHA which set guidelines for such applications, and was the first domestic case to rely on the UN Convention on the Rights of Disabled Persons.

Actions for damages, including under the Human Rights Act 1998

Aswini has particular expertise in tort actions and Human Rights Act claims, for example, relating to assaults or unlawful detention against public authorities including social services, the police and immigration authorities, negligence by mental health professionals, and for misuse of private information and against sporting organisations.   She has acted in a series of group actions for victims of historic child abuse in children’s home.  She has also acted for individuals in such claims, including cases about the failure of local authorities to remove young children from abusive families, and other care situations, and cases taken against sporting bodies.  She has particular expertise in issues of limitation and vicarious liability. 

Examples of cases:

  • Various claimants v Hampshire County Council, claims for 16 victims of historic child abuse in residential care.
  • M v Knowsley BC, ongoing claim on behalf of a claimant lacking capacity for enduring local authority failures, including failures of risk assessment, under the MCA and the application of deprivation of liberty safeguards.
  • Somerset County Council v MK [2014] EWCOP B25, acted for MK seeking and obtaining findings of violations of articles 5 and 8 of the Convention. The judgment is highly critical of the conduct of the local authority. Ongoing Adams v Ampleforth (2015). Claim for historic child abuse at a public school. Settled.
  • Trattles v St John’s Ambulance (2015). Claim for historic child abuse. Settled
  • Somerset v MK [2014] EWCOP B25, acted for MK seeking and obtaining findings of violations of articles 5 and 8 of the Convention.  The judgment is highly critical of the conduct of the local authority.  Damages claim is ongoing.
  • Walker v Rhonda and Merthyr Tydfil County Borough Council (2014), a claim concerning the failure of local authorities to remove a young child from the neglect of his mother and grandmother. Issues of limitation and negligence. Settled.
  • Blackstock v Stoke City Football Club and Fox [2014]: successful limitation hearing under section 33 of the Limitation Act 1980 to permit a claim for assaults committed in the mid 1980s to proceed to a full trial on liability, causation and quantum. The case raised an issue concerning the vicarious liability of the club for any assaults proved against Mr Fox, a first team player at the relevant time.
  • Williams v Church in Wales (2013): claim for damages for historic child abuse settled.
  • EH v West Sussex County Council (2013): settlement achieved in claim for damages for physical and sexual assaults in a children's home in the late 1970s.
  • Bridge v Chief Constable of Kent [2013]: won damages for false imprisonment after a full trial for a woman police constable with bipolar affective disorder who was arrested at her family home.
  •  MS v UK (2012) 55 EHRR 23. An important decision of the European Court of Human Rights that a mentally ill man was detained in a police cell without treatment for his mental illness in violation of article 3.
  • London Borough of Hillingdon v Steven Neary (by his LF the OS) and Mark Neary
  • [2011] EWHC 1377 (COP), 4 All ER 584: The court made significant findings of substantive violations of articles 5 and 8. Pleaded and issued a subsequent claim for damages in the QBD of the High Court which settled.
  • AB and others v Nugent Care society:  Institutional abuse multi party action.  Physical and sexual abuse of boys in children’s homes during the 1970s and 80s by staff leading to psychiatric damage especially post traumatic stress disorder:  [2006] EWHC 2986; [2009] EWHC 4812; [2010] PIQR P3 (CA) and most recently [2010] EWHC 1005 (QB): claimants won damages after trials on limitation and liability.

Reporting restrictions and media

Aswini has been involved in a number of cases concerning publicity and reporting restrictions engaging rights under article 6, 8 and 10, and the Human Rights Act 1998. She has also advised on television productions, for example, Unwell, a Dispatches documentary for Channel 4 using covert filming in psychiatric hospitals. 

Examples of cases:

  • London Borough of Hillingdon v Steven Neary (by his LF the OS) and Mark Neary [2011] EWHC 413. The first COP case in which the press/media were permitted to be present throughout, and then to report the proceedings, naming P.
  • AH v West London Mental Health NHS Trust and another [2010] UKUT 264 (AAC) and [2011] UKUT 74 (AAC): a successful application for a public tribunal hearing by a patient at Broadmoor detained under sections 37/41 MHA which set guidelines for such applications, and was the first domestic case to rely on the UN Convention on the Rights of Disabled Persons.
  • E v Channel 4 and News International Limited  [2005] EWHC 1144 Fam, 2 FLR 913, EMLR 30.  Acted for the Defendant media organisations resisting an attempt to restrain the broadcast of a TV programme about the care and services provided for an incapacitated woman with multiple personalities. Interim injunction. Articles 8 and 10 ECHR.  

Appointments

Judge of the First Tier Tribunal (Health, Education and Social Care Chamber) since 2002

Deputy chair of the Investigating Committee of the General Pharmaceutical Council since September 2014. 

 

Memberships 

Association of Regulatory and Disciplinary Lawyers, Court of Protection Practitioners Association. MIND, LAG, Liberty and the Legal Aid Lawyers Practitioners Group, Association of Sri Lankan Lawyers in the UK, and Lawasia.

 

Education

BSc in Experimental Psychology, Sussex University in 1984

Diploma in Law, City University in 1985

Council of Legal Education, Bar vocational course in 1986

Called to the Bar at Gray’s Inn in July 1986

LLM in International Human Rights Law (with distinction), SOAS, London University in 2004

Publications

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