Court of Protection Newsletter #0727.02.18
Welcome to February's issue of Spire Barristers’ Court of Protection Newsletter covering the previous month's news from around the web, practice updates and case reviews in Court of Protection and Public Law matters: edited by Jacqueline Thomas, Ella Anderson and Laura Twist. Contributions from pupils Sharon Tappin and Ashley Lord
Thanks for reading.
Case Law Update
Re, Various Incapacitated Persons (Appointment of Trust Corporations as Deputies)  EWCOP 3
The court was concerned with applications for deputyship brought by 11 trust corporations in relation to 36 individuals.
The court looked at the factors it must consider when assessing suitability for appointment and made clear that the appointment of a particular deputy still remains a best interest decision and one that will turn on its own facts.
The court identified that there was no current system confirming suitability of a trust corporation. Moving forward the approach must be one-of self-reporting with a declaration of truth in the same way as any other deputy would apply. An applicant trust corporation should also provide an undertaking to the Office of the Public Guardian to keep them updated of any changes.
In terms of the appropriateness of internal management supervision of trust corporations the approach should be the giving of an undertaking by the trust corporation to ensure that such processes are in line with the Office of the Public Guardian’s published standards for professional deputies.
Trust corporations must meet the same standards irrespective of their roots, for example, a trust corporation linked to a law firm should not have to meet a higher standard than a trust corporation linked to a charity or bank. That said, where a trust corporation is regulated and required to meet the standards of, for example, the SRA, the court can derive some assurance that that prospective deputy is likely to behave in an appropriate fashion. If he does not, then the other agencies (the regulator) will likely step in.
The court was only concerned with SRA regulation in these proceedings. Even with the conclusions reached there will still be a need for consideration of the facts of each case. In principle, however, where a trust corporation is “authorised” by the SRA then the court can be satisfied that they are suitable for appointment as a deputy.
R on the application of Silviu Mitocariu and Costica Lazarel v Central and North West London NHS Foundation Trust  EWHC 126 (Admin)
These were judicial review proceedings brought by the Claimant’s to challenge the Defendant NHS Foundation Trust position on financial assistance available to patients whilst detained by Mental Health Act 1983.
The complaint was one of a failure to make “pocket money payments” to assist the Claimants whilst they were being detained; the claimants alleged that this deprived them of dignity.
The initial challenge was brought with reference to s.122 Mental Health Act 1983 as amended by s.41 Health and Social Care Act 2012, however, the latter in fact removed the Secretary of States power to make payments. It was instead submitted that each trust still held a discretion under the NHS Act 2006.
By the time the proceedings reached a hearing the Defendant contended that they did not have the power to make payments to in-patients as a result of its contract with NHS England. Prior to this, however the Defendant’s had accepted that they did have a power to make payments and had described such payments as humanitarian payments in the interests of aiding the recovery of in-patients.
The legislative basis for the making of payments is s.46(6) of the NHS Act 2006 read in conjunction with the functions outlined in s.43 of the same act. Furthermore, general powers are granted by s.47 of the 2006 act and the court considered such general powers to be wide enough to include a power to make payments.
The Court concluded that the Defendant does have power to make payments to patients by virtue of s.43 and s.46(6). It also has the power under s.47 of the 2006 Act.
Whilst the Defendant sought to rely on its contract with NHS England as prohibiting it from making payments of the type complained of in the proceedings the court had not been furnished with full texts of those contracts but found nothing within what it had been provided with that suggested they could not make payments. Crucially, given the existence of a statutory provision providing the power to the Defendant to issue payments, if the NHS England contract did have a clause preventing the same then such a clause would be ultra vires.
Whilst there was a power to make payments, the power was limited by s.43 and the power could only be exercised where it fell within the scope of the same. The use of the power within s.43 was dependent upon the exercise of the judgment of the clinicians taking account of all the relevant circumstances including the patient’s financial circumstances and treatment.
The applicants submitted that the provision of payments was not one of discretion and that the means of patients did not require consideration. The court rejected this submission and held that the provisions giving rise to the power very clearly required an exercise of discretion.
The court held that the Defendant had exercised its discretion lawfully. There had been continued review of progress notes relating to the financial circumstances of the applicants. Furthermore, non-regular payments had been made and upon the threat of proceedings being issued a regular sum was paid as a holding measure.
In summary, the Defendant trust had a power to make payments to the Claimants only on the basis that they were commensurate with their therapeutic needs (s.46(6) in conjunction with s.43 of the 2006 Act). As the holder of such a power the Defendant was obliged to consider whether it was appropriate to exercise that power. In this case, the court was satisfied that this had been done.
Commissioner of Police for the Metropolis v DSD and another  UKSC 11
Between 2003 and 2008 John Worboys committed a series of sexual offences against women who used his London taxi. DSD, the first Respondent to this appeal was Worboys’ first victim and the second respondent NBV became his victim in 2007. Many other women were assaulted between 2003 and 2007 and many more thereafter still.
Both DSD and NBV brought proceedings against the Commissioner of the Metropolitan Police. Their complaints centered on an alleged failure of the police to conduct effective investigations into Worboys’ offending. Both actions were brought with reference to s.7 and s.8 of the Human Rights Act 1998 which allows proceedings to be brought by a person where they consider that the actions of a public authority were incompatible with their rights under the ECHR.
The basis of the complaints of both DSD and NBV were that the police investigation was riddled with failures such that the failures constituted a violation of their Article 3 ECHR rights. Their claims were initially successful before Green J and then again before the Court of Appeal. The Metropolitan Police appealed to the Supreme Court with a number of organisations, including Liberty and Rape Crisis joining as interveners.
The police did not dispute that DSD and NBV had been subjected to serious sexual assaults by Worboys, nor did it dispute that the police had made significant errors when investigating the offences.
Whilst seeking to protect individuals from the type of treatment described in Article 3 of the ECHR, there is also a general duty on the state to investigate ill-treatment amounting to a violation of the same. The focus of the appeal before the Supreme Court was clarifying the nature of the duty imposed by the Article 3 – the central issues are outlined by their lordships at paragraph 6 of the judgment (hyperlinked below).
The police submitted that the duty to investigate, detect and prosecute crime is a duty owed to the public at large and not to individual citizens. The police also submitted that the no private law duty is owed to victims of crime with such a proposition being supported by a consistent theme of judicial decisions. The police further suggested that any alleged failures can be addressed through the disciplinary regime brought about by the Independent Police Complaints Commission. Further the police argued that the duty imposed by Article 3 in circumstances where the violation is by a member of the public who is not a state agent, extends only as far as ensuring legal structures are in place to ensure a proper inquiry can take place. The police contended that the duty did not extend to the “operational content” of an individual inquiry. The duty only extends to the latter where the state agents are complicit in the alleged violation.
The respondents, unsurprisingly, disagreed with the police assessment of its duty. They submitted that Article 3 imposed a duty on the police to conduct an “effective” investigation into crimes of the nature they suffered. The respondents submitted that this was a positive protective obligation and one designed to ensure the police take measures to ensure that individuals are not the subject of treatment that violates Article 3. They submitted that the duty was not abstract and can be invoked by an individual who can demonstrate that a state failure has led to the suffering of the treatment prohibited by the Article. The respondents suggested that the police submission on the need for consistency between the common-law and the HRA was one of justiciability; they suggest that the decision to enact the HRA effectively disposed of the issue of justiciability and the incorporation of the ECHR into domestic law provided a remedy for a breach by the state of Article 3 protective obligations. Finally, the respondents submitted, with reliance on the authority of Van Colle that the exemption from liability at common-law does not follow through to the position under the HRA.
The question of what is “effective” in terms of an investigation was considered with reference to Strasbourg case-law, such that the following was noted by the court “the authorities must have taken reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and so on”.
The court examined in great detail the proposition submitted by the Appellant that Article 3, in the context of the complaints brought by the respondents was limited to instances of systemic failures rather than operational failures. The authorities examined by the court were considered very clear and the court found that the duty was very much one incorporating operational aspects of inquiry and not just the system within which they are housed.
The court was however at pains to stress that simple errors or isolated omissions will not give rise to a violation of Article 3, only conspicuous or substantial errors in investigation would qualify.
The proposition forwarded by the Appellant’s to the effect that the duty only came about where the suggested perpetrator was a state agent was also fiercely dismissed by the court. Lord Kerr was very clear in his view (with which the majority agreed) where he said, “the statement that positive obligations are not solely confined to cases of ill-treatment by state agents could be clearer”.
The court highlighted, however, that a breach of Article 3 rights would not, automatically give rise to compensation. It was made clear that the question in a claim surrounding a breach of a convention right was very different to a claim in damages in the civil arena. The focus in the latter is one of compensating the wronged individual. The focus in the former is, first and foremost, the overall nature of the investigative steps taken by the State. The court also reminded us that in the Human Rights Act claim the question of damages only becomes appropriate when they are necessary for “just satisfaction”.
In terms of harmonising the common-law exemption of liability for police with the duty, the court, in a majority, did not accept that the common-law exemption should be modified to include exemption from liability in a Human Rights Act claim. Both are very different in terms of where they hail from; one is common-law and the other is statute. The court suggested that the common-law was flexible enough to cope with questions of policy and what was “fair, just and reasonable” whereas the question under statute did not sit neatly with such an examination – the court said that issue under the statue is rather more straightforward, either the police have a protective duty under Article 3, or they do not.
The focus of the appeal and also the judgments of Lord Kerr, Lord Neuberger and Lord Hughes was very much on the direct victim of the offence, in the case of Worboys, the people he sexually assaulted. Lord Mance, however, appears to stretch the interpretation of victim to a third person who suffers foreseeably as a result of the failure to properly investigate. The effect of this comment is unclear, not least because no further comment is made on the subject, but the remaining judges make no comment on this suggestion either. It may therefore be possible to bring a Human Rights Act claim as a third party if they have suffered foreseeably as a result of a relevant violation.
In summary the court is satisfied that the duty on the police in terms of investigating offences that violate Article 3 rights extends to both the systemic and the operational. The duty is to investigate offences effectively and where the police fail to do so liability under the Human Rights Act can follow if those failures are sufficient to constitute a violation of Article 3 ECHR.