Court of Protection Newsletter #0816.04.18
Welcome to (a later that usual) March 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.
The Parliamentary and Health Service Ombudsman publishes a report into significant failings within the mental health service [PDF]Read More
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Significant delays in completing investigation into the deaths of two elderly men killed in hospital by patient with schizophrenia.Read More
Coroner finds failures by heath care services possibly contributed to killing of 61 year old father by man with schizophrenia, drug and alcohol issues.Read More
Updated Case Law Directory available for download.
Case Law Update
Re MB  EWCOP 35
MB had been subject to continued deprivation of liberty safeguards since 2007. In proceedings challenging a standard authorization made in April 2017 a jointly instructed expert had undertaken a capacity assessment. Surprisingly the expert’s opinion was that MB did have capacity to make decisions about residence and care. The expert gave evidence and was of the view that MB’s capacity was ‘delicate and fragile’ and could easily be lost on days when he was experiencing anxiety. An application was made for a second expert to be instructed as the current opinion differed so significantly from a long history of expert assessments that MB lacked capacity.
The court held that the impact upon MB was potentially life changing and therefore agreed that it was necessary to instruct another expert, with the same background as the current expert.
Re A-F (Children)  EWHC 138 (Fam)
The President Sir James Munby gave Judgment on a number of test cases before him dealing with the interface between care proceedings within the Family Court and the Article 5 rights of seven children aged between 11 and 16 whom were all subject to restrictions on their movement or liberty.
The president explored a number of cases dealing with children and whether the care arrangements for a child were the same as those for other children of their age and whether the level of ‘confinement’ or continuous supervision was such as to constitute a deprivation of liberty or whether this was an ordinary aspect of parenting and keeping a child safe.
The President also considered whether it was possible to identify a minimum age by which a child below that age is unlikely to be deprived of their liberty as a comparable child of the same age would also be subject to the same level of confinement and continuous supervision. The local authority suggested that this was possible and that the age of 10 could be considered to be a minimum age. One of the children’s Guardian’s rejected this view as there were a number of variables for children of this age depending on whether they were living in an urban or rural environment.
The President found as a ‘rule of thumb’ that a 10 year old under pretty constant supervision is unlikely to be ‘confined’. The court should be astute to coming too readily to a conclusion that an 11 year old in the same circumstances is ‘confined’, although they may be. The court will more readily reach the conclusion of ‘confinement’ once a child subject to constant supervision has reached the age of 12. The President was clear that the decision must depend on the circumstances of the particular case and the identification by the judge. The President was clear that there should be no comparison made with a typical child of the same age subject to a care order in considering ‘acid test’ for determining a deprivation of liberty.
The President set out the process to be followed in authorising a deprivation of liberty for children, and in particular indicated that where care proceedings were also ongoing that if possible the case should be allocated to a Circuit Judge who is also a Section 9 Judge, although the proceedings will remain in the Family Court and must not be transferred to the High Court. If the proceedings are not alongside care proceedings then the child must be represented and have a Children’s Guardian appointed, and any such authorisation must be reviewed by a Judge at least once every 12 months, or upon any change in the child’s condition or any proposal to change placement. The President also agreed that generally proceedings should be concluded upon a final order and at after each review and the local authority should issue a fresh application for each subsequent review. The President is to review the matter further to consider whether standard forms of order could be agreed for such cases.
RE M  EWCOP 4
This was a case where an entire family had been involved in a serious car accident resulting in the death of the father and one child and the survival of the mother and second child. The mother suffered serious injuries resulting in her requiring around the clock care. There were two separate sets of proceedings, one in the family court relating to the care arrangements for the child, who was living with paternal grandparents; and court of protection proceedings relating to where mother should live.
At the time of the conclusion of the family proceedings, which resulted in Special Guardianship orders for the child to remain with his grandparents; the mother was living in independent accommodation supported by carers.
At the court of protection hearing the grandparents were seeking for the mother to return to live with them and her child. The same judge heard both sets of proceedings. In discussions with advocates only, the Judge expressed a view that it would be a nonsense for her to reach a different conclusion about where the mother lived in the CoP proceedings from the decision she had reached in the family proceedings that the child should live with his grandparents (and therefore not his mother).
On appeal it was held that the judge had expressed a view without hearing evidence which represented a concluded view and was ‘an unfairness which cut across the entirety of the hearing’ and on that basis there should be a rehearing of the court of protection matter before a different judge.