Court of Protection Newsletter #0917.05.18
Welcome to the May issue of Spire Barristers’ Court of Protection Newsletter covering April/May'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
Secretary of State for the Home Department v Sergei Skripal and Salisbury NHS Foundation Trust  EWCOP 6
Secretary of State for the Home Department v Yulia Skripal and Salisbury NHS Foundation Trust  EWCOP 6
It is a news story that nobody can have missed – on 04 March 2018 Sergei Skripal and his daughter, Yulia Skripal were admitted to Salisbury hospital. Upon admission, tests were carried out by the Defence Science and Technology Laboratory at Porton Down. The tests carried out at Porton Down concluded that Mr and Ms Skripal had been exposed to a nerve agent. At the time of the application to Court of Protection, Mr and Ms Skripal remained under heavy sedation in hospital.
In the immediate aftermath of the incident the UK government invited the Organisation for the Prohibition of Chemical Weapons (OPCW) to send a team of experts to the UK to independently verify the analysis carried out by Porton Down. In order to conduct their enquiries, the OPCW sought to:
1. Collect fresh blood samples form Mr and Ms Skripal so as to:
a) undertake their own analysis as to any evidence of the use of nerve agents;
b) to conduct DNA analysis in order to ensure the samples tested by Porton Down were from Mr and Ms Skripal
2. Assess Mr and Ms Skripal’s medical records which set out the treatment they had received since their admission into hospital
3. Conduct a further test on the samples already taken and analysed by Porton Down
Given the Skripal’s unconscious state neither could give their consent for the further blood samples to be taken for the purposes they were sought, nor could they consent to the disclosure of their medical records. The Hospital Trust notified the UK Government that a court order would be required before they could release either further blood samples or the medical records.
The Secretary of State therefore applied to the Court for welfare orders under the provisions of the Mental Capacity Act 2005. Whilst formally respondents to the respective applications the NHS Trust did not play an active part in the proceedings. The applications were filed separately and were not formally consolidated, they were merely listed on the same date at the same time for hearing given the overlap in the issues.
The applications were not opposed by any party. All parties agreed through the course of argument that the Skripal’s lacked capacity to make decisions and that the further testing disclosure of notes was in their best interests.
The Court first identified that it could not determine the issue of habitual residence in relation to the Skripal’s with certainty. Notwithstanding this determination the Court was satisfied that it had jurisdiction to hear and decide the application before it given that at the relevant time to which the application related and came before it, the Skripal’s were in England and the matter required urgent determination.
The Court then turned its attention to the question of capacity and reminded itself of the law. The Court concluded, without much difficulty, that the Skripal’s lacked capacity through a combination of sedation and exposure to a nerve agent.
Next the Court considered the question of “best interests” and in doing so had particular regard to s.4 of the 2005 act. Reaching the conclusion that granting the orders sought the Court analysed the likely wishes of the Skripal’s, those being, as any reasonable citizen would wish, for all avenues of investigation to be explored. The Court also stated that even if it was wrong in its assumptions as to their beliefs, it was satisfied that they would want to know as far as was possible what happened to them and that the OPCW investigation would only serve to assist in reaching that conclusion.
In light of the Court’s analysis it granted all orders sought as have been outlined above.
In the matter of JMK  EWCOP 5
This case concerned an application for an order to recognise a Canadian Power of Attorney pursuant to schedule 3 of the Mental Capacity Act 2005. The question requiring determination is whether such an instrument amounts to a “protective measure” for the purposes of the schedule.
The application itself had been made by the daughter and son-in-law of JMK. Alongside their application they exhibited a certified copy of a document purporting to be Continuing Power of Attorney.
The application was considered on paper initially and was dismissed on 31 August 2017. The order confirming dismissal of the application stated that the reason for the dismissal is that the Continuing Power of Attorney cannot be considered as a protective measure. A protective measure is usually understood to mean an arrangement that has been approved/made by a foreign court which then requires recognition in England and/or Wales. The order continued so as to identify that the Continuing Power of Attorney at the heart of the application lodged by JMK’s relatives had not been through any court process at all.
An application was received dated 30 October 2017 requesting a reconsideration of the August 2017 dismissal. JMK’s relatives filed a skeleton argument but the applicants did not attend the hearing and there were therefore no oral submissions in addition to the skeleton argument.
Very little information in respect of JMK was available to the Court, although it appeared that she had signed a document headed “Continuing Power of Attorney”. The document also contained the word “Ontario” and underneath the heading suggested that the instrument is “made in accordance with the Substitute Decisions Act 2992”. Nothing within the document commented on JMK’s capacity to execute the instrument or manage her property and affairs herself, although it the document did confirm that the appointed attorneys were authorised to act “even if I am mentally incapable”.
On 22 July 2015 JMK was moved to a care home in Canada and a letter was provided to the Court confirming that she required assistance with her daily living activities which was being provided by 24-hour personal support workers and registered nursing care.
A further letter was filed by JMK’s attorneys dated 30 October 2017 confirming that following a legal battle involving one of JMKs sons who sought access to funds he believed were his. The letter confirmed that the lawsuit had been settled but JMK’s funds were left almost exhausted as a result.
The Court considered the law and was only able to find one authority of relevance to the application, that being the case of Re MN (Recognition & Enforcement of Foreign Protective Measures)  EWHC 1926 – the focus in Re MN being confirmed in its opening line as to whether the courts of England and Wales should recognise and enforce an order of a Court of another competent jurisdiction.
The Applicants in the JMK case had failed to provide an explanation as to why they considered the Continuing Power of Attorney to be a protective measure in light of the comments made by the court upon dismissal of the initial application on paper. The Applicants had however sent an email confirming that at the time of issuance, the POA was not a protective measure other than JMK was not used to managing household finances and so help was offered. In order for that help to be provided authority had to be given. The email also confirmed that the Canadian government did not keep a registry of Continuing Power of Attorneys and therefore there was no requirement for it to have been registered.
The Court upheld the August 2017 dismissal of the application stating that it seemed that reference to “protective measures” in schedule 3 was intended and generally understood to refer to arrangements that had been made or approved by a foreign court. Whilst it was not spelled out explicitly, the language of paragraph 19(3) in particular confirms that intention and understanding – each of the circumstances wherein the mandatory requirement can be disapplied clearly envisages court proceedings. The court concluded my making it clear that the Applicants could still apply to be appointed as property and affairs deputies within the England and Wales jurisdiction.
M v ABM University Health Board  UKUT 120 (ACC)
This case concerned the decision not to disclose information to a patient indicating that he had been covertly medicated during mental health tribunal proceedings. The appeal against the decision to refuse to disclose the information was overturned on appeal because the decision was taken without considering the extent to which, despite having impaired capacity, the Applicant was capable of participating within the proceedings.
Mr M was detained under s.3 of the Mental Health Act 1983 on 26 March 2015. The case was referred to the Mental Health Tribunal by on the basis that the hospital managers argued the statutory criteria for continued liability to detention for treatment were satisfied. The hospital was concerned that if the information sought by Mr M was disclosed he would be aware that he had been covertly medicated and would be able to refuse that moving forwards.
In December 2015 the Tribunal asked Mr M’s responsible clinician whether he had the capacity to appoint a legal representative. The form was returned to the tribunal indicating that the clinician did not believe he had the capacity, but no capacity assessment accompanied that indication. Subsequently the Tribunal appointed a Solicitor as Mr M’s representative. That Solicitor represented M before the Tribunal.
According to Mr M’s care and treatment plan his local authority intended on making an application to the Court of Protection for appointment as his deputy in relation to his financial affairs and on 19 January 2018 Mr M was assessed as lacking capacity to deal with his financial affairs.
A later psychiatric report in February 2016 again written by Mr M’s treating clinician stated that he did not have capacity to consent or refuse treatment. It was noted that Mr M’s conversation was peppered with delusional ideas and beliefs.
Despite multiple apparent assessments in varying contexts, the papers that had been before the Tribunal did not contain any formal mental capacity assessment.
Mr M was admitted to Psychiatric Intensive Care Unit (“PICU”) on 16 December 2015 where, for the first 48 hours of admission Mr M was compliant with medication needs and accepted all prescribed medication. Subsequently he began to refuse medication stating, amongst other things, that he will only accept medication that is brown in colour. Mr M also began to decline immunoglobin replacement therapy which placed him at risk of infection. Mr M was described as having no insight into this and as a result the medical team on the PICU reverted to administering his medication covertly.
On an unspecified date the treating clinician requested a second opinion appointed doctor (“SOAD”) for covert medication. A SOAD later visited MR M but he was verbally aggressive and refused to talk about his medication.
The administration of medication covertly continued, albeit had been preceded by a best interests meeting and a capacity assessment.
The Upper Tribunal identified a number of concerning gaps in the evidence that was available to the First-Tier Tribunal.
The hospital managers accepted that the general rule of full disclosure placed the burden upon them to justify non-disclosure. The hospital managers referred to the decisions in Re B (Disclosure to Parties) a 2001 decision of Munby LJ that explained that Art 6 rights cannot be watered down by reference to Art 8, but notwithstanding that he did not have an absolute and unqualified right to see all the documents in the case. The hospital managers further argued that disclosure would have very significant consequences for the patient as he would likely fairly to consent to medication for both his physical and mental disorders. In summary the hospital managers argued that the balance tipped in their favour given the extreme behaviour displayed by Mr M when he was not on his medication and the risk of death were he non-compliant with treatment for his physical and mental disorders.
Mr M’s solicitor argued that despite having been assessed as lacking capacity he had frequently expressed his wishes and feelings about medication. Mr M remained entitled to know the evidence against him. Finally, Mr M’s solicitor argued that a failure to disclose would interfere with Mr M’s Art 8 rights.
The First-Tier tribunal granted the hospital managers’ request for non-disclosure and the Upper Tribunal outlines the findings and conclusions made at para 28 of the attached judgment.
The Upper Tribunal notes that settled authority in the form of YA v Central and North West London NHS Trust [2015 UKUT 37 (AAC) acknowledges that despite lacking capacity to appoint a representative a person might nevertheless have capacity to provide a representative with instructions. Throughout the course of Tribunal proceedings, the Tribunal remain under an obligation to ensure, so far as practicable, that Mr M was able to participate in proceedings fully. The duty to ensure participation did not disappear upon the appointment of a legal representative. The Tribunal should therefore have turned its mind to the issue of the extent to which Mr M was capable of participating in proceedings – the Tribunal’s failure to turn its mind to this issue was an error on a point of law.
There is no requirement for capacity to participate to be calibrated so as to assess some level of residual capacity. That said, it is necessary to seek submission from the parties as to the patient’s ability to participate – this may lead the Tribunal to conclude that the detaining authority provides it with any formal capacity assessment(s) that may have been carried out.
In the matter of Alfie Evans No.2
As the Supreme Court highlight in the very first sentence of this decision, this is a desperately sad case. This decision is the last in a stream of decisions to have been issued at all levels of the UK justice system.
This judgment deals with the Supreme Court’s decision on the Alfie’s parents’ application for permission to appeal against the Court of Appeal’s decision to refuse to grant an order that Alder Hey Hospital release Alfie into the care of his parents. The application for permission to appeal was before the Supreme Court on an application for habeas corpus.
The Supreme Court carried out a brief historical analysis of the powers of the Court in relation to the production of a child. The starting point was the Custody of Children Act 1891 with the analysis concluding with the current position under s.1 of the Children Act 1989, that position being that the paramount consideration for the Court is Alfie’s best interests.
The parents had already unsuccessfully argued that the proposals of Alder Hey and indeed other decisions of the High Court and the Court of Appeal when authorizing the cessation of life support treatment were a breach of Alfie’s and their own rights to private and family life under Article 8 of the ECHR. The challenge to which this current decision relates is one under Article 5 of the ECHR in that Alfie’s parents complained that Alfie was being deprived of his liberty.
In refusing to grant permission to appeal the Supreme Court made it plain that a person who is unable to move because of the measures which are being taken in intensive care to keep him alive is not deprived of his liberty within the meaning of article 5. The Supreme Court also made plain that measures can only be taken to keep a person alive if it is in that person’s best interests.
In concluding its reasons for refusing to grant permission the Supreme Court made clear that it has been conclusively determined by a trial Court that it is not in Alfie’s best interests to stay in Alder Hey Hospital being treated as he currently is, nor is it in his best interests to travel abroad for the same purpose.
The Supreme Court reminds us through this decision that the “gold standard” is always what is in the persons best interests.
NHS Windsor and Maidenhead Clinical Commissioning Group and SP (by her Litigation Friend the Official Solicitor)  EWCOP 11
On 03 October 2014 SP suffered a cardiac arrest at the age of 50 and it took over 25 minutes for cardiac circulation to be re-established. SP was admitted to Wexham Park and subsequently Northwick Park Hospital and has never regained consciousness.
In early 2015 SP was diagnosed as being in a continuing vegetative state and in April 2015 as being in a permanent vegetative state (PVS). SP had been in receipt of CANH since October 2014. From 23 March 2015 SP was cared for at a nursing home.
All medical professionals who examined SP, including an expert instructed by the Official Solicitor confirmed that SP was in a PVS and that it was highly improbable she would ever regain consciousness.
At the time of the incident SP was described as full of life, warm and caring, utterly dedicated to her children, lively, a sense of fun, quirky and with a love of the outdoors and of animals. Her condition from October 2014 was described by the Court as desperate and as “…a life as profoundly altered as can be imagined”.
All medical professionals responsible for treatment and assessment of SP and SP’s family agreed that CANH should be withdrawn. Notwithstanding this agreement Windsor, Ascot and Maidenhead CCG applied to the court for a personal welfare order authorising the withdrawal of the CANH treatment and the implementation of a palliative care plan.
In formulating his judgment Mr Justice Williams delivers an excellent overview and analysis of recent decisions involving the withdrawal of CANH. He also neatly outlines the law in this area generally.