Court of Protection Newsletter #0514.12.17

Practice Update

“New Look” Court of Protection Rules 2017 – Live from 01 December 2017

The Court of Protection Rules 2007 and amendments thereto are revoked from 1 December 2017 and replaced with a consolidated set:PM announces plan for an independent review of the Mental Health Act.

New Court of Protection Practice Directions

Practice Note – Acting as a Professional Attorney

Practice Guidance – Valid examples of LPA’s

Case Law Update

Salford Royal NHS Foundation Trust v Mrs P (by her litigation friend, the Official Solicitor) and Q

This case concerned a 72-year-old lady who, following a fall in December 2016 was consistently diagnosed as being in a minimally conscious state and at the lower end of the scale therein. She lacked capacity to represent her own wishes and feelings. The experts agreed that there was little prospect, if any, of any improvement and that there was no prospect of Mrs P regaining capacity. The issue that befell the Court was what was in Mrs P’s best interests: on the one hand was the option of continuing assistance through a PEG (as the applicant hospital sought); on the other hand was the option of withdrawal of such treatment.

Shortly after her deterioration to an MCS state, her sisters communicated to the treating physicians that she had expressed a wish not to be kept alive if she became seriously handicapped, especially if her mental function was affected seriously. As the hearing progressed and evidence came out, it became clear that Mrs P had had discussions with her family to the effect that she did not wish to be kept alive; not least in an email where following watching a television programme on Dementia she recollected her husband and father’s situations and said, “Get the pillow ready if I get that way”.

At the conclusion of the evidence, the parties were aligned that Mrs P’s wishes were cogent and clear and one of the experts had accepted that if her wishes could be established that would be determinative of the issue before the Court.

The Court found that Mrs P would not have wanted to remain in her current state and refused the applicant’s application for permission to continue treatment via a PEG

Full judgment

Damien Tinsley v Manchester City Council and Others [2017] EWCA Civ 1704

In 1998 Mr Tinsley had been riding on a bicycle when he was hit by a car in a road traffic accident. Mr Tinsley was left with an organic personality disorder which in turn led to his being compulsorily detained under s.3 Mental Health Act 1983. Mr Tinsley was later awarded £3.5m in damages for personal injury as a result of the accident.

Following his discharge from his mental health detention, but prior to receipt of his award of damages, he spent some time in a mental health nursing home funded by Manchester City Council under s.117 of the 1983 Act. Following receipt of his damages, Mr Tinsley paid for personal care in his own home himself and did not accept further assistance under section 117.

In 2009 a new deputy was appointed to Mr Tinsley. The deputy had concerns that Mr Tinsley’s finances had previously been mismanaged and there was real concern that he would not be able to sustain the cost of funding his existing care arrangements. Mr Tinsley’s deputy therefore sought the provision of further after-care services from the Local Authority stating that they had a duty to provide the same under s.117 of the 1983 Act.

The Local Authority refused to pay for the further care services on the basis that Mr Tinsley had not yet exhausted his personal injury damages. The High Court held that the Local Authority’s position was unlawful and previous case law also confirmed that charging for the further aftercare services in Mr Tinsley’s circumstances was unlawful. The Local Authority also argued that if they provided the further after-care now sought this would equate to double recovery.

The Court of Appeal upheld the High Court decision and held the refusal to provide the services was unlawful. The construction of the legislation does not permit refusal to fund the services on the basis that PI damages had not been exhausted; had Parliament intended it to allow for refusal in such circumstances the legislation would have been drafted differently. The Court also rejected the arguments surrounding double recovery.

Full judgment

NHS TRUST and Mr Y (by his Litigation Friend, the Official Solicitor) and Mrs Y [2017] EWHC 2866 (QB)

Mr Y, a 52 year old man, suffered a cardiac arrest after a myocardial infarction as a result of coronary artery disease. It was not possible to resuscitate him for well over 10 minutes, resulting in severe cerebral hypoxia and causing extensive brain damage. It was accepted that Mr Y lacked capacity to make a decision as to his future treatment and care. Mr Y did not execute any advance decision to refuse treatment or a lasting power of attorney. Mr Y’s wife, his children and wider family had considered carefully what Mr Y’s wishes would be and were firmly of the view that he would not wish to be kept alive given the poor prognosis.

The clinical team and Mr Y’s family agreed that it would be in his best interests for Clinically Assisted Nutrition and Hydration (CANH) to be withdrawn, with the consequence that he would die within a period of 2 to 3 weeks.   The NHS Trust argued that there is no statutory or common law obligation to refer the decision to the court where there is no dispute between the clinicians and the family as to the incapacitated person’s best interests. The Official Solicitor appointed to act on behalf of Mr Y accepted that there was no statutory provision but argued that there was a common law obligation to do so in order to preserve Mr Y’s Article 6 rights.

The High Court found that there is no rule of principle or binding authority for the proposition that there is a legal obligation that all cases concerning the withdrawal of CANH from a person who lacks capacity must be sanctioned by the court.  The decision in Re M establishes that where the clinicians have followed the MCA and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare, and no other doubts or concerns have been identified, there is no requirement to bring the matter before the court.

The court held that Bland established that the withdrawal of CANH from a person who lacks capacity is not an unlawful interference with the person’s right to life where it is not in his best interests to continue such treatment.

The court granted a declaration that it was not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration (“CANH”) from Mr Y who has a prolonged disorder of consciousness in circumstances where the clinical team and Mr Y’s family are agreed that it is not in his best interests that he continues to receive that treatment.

The Official Solicitor is seeking to appeal the matter and permission has been given for an appeal to ‘leapfrog’ to the Supreme Court.

Full judgment