Court of Protection Newsletter #1226.02.19
Welcome to the February issue of Spire Barristers’ Public Law Newsletter covering news from around the web, practice updates and case reviews in Court of Protection and Public Law matters.
Thanks for reading.
Letter from chair of Joint Committee on Human Rights about proposed statutory definition of deprivation of liberty in the Mental Capacity (Amendment) Bill.Read More
The supporting materials for the review of the MHA 1983 that reported in December last year.Read More
In the news
The hashtag #DolsRights on Twitter is being used to collect stories about the benefits of DOLS and successful outcomes, both at court and during the DOLS assessment process.
Published comments on the mental health act review:
NHS Clinical Commissioners https://www.nhscc.org/latest-news/nhscc-respond-to-independent-review-of-the-mental-health-act/
Policy and guidance
The Family Procedure Rules 2010 and Court of Protection Rules 2017 (Amendment) (EU Exit) Regulations 2019.
The Government has issued amended regulations concerning the impact that leaving the EU will have on the Court of Protection Rules.
The Home Office has published a domestic abuse consultation response and draft bill. The bill was a key pledge in the 2017 Queen’s Speech.
The draft bill introduces the first statutory definition of domestic abuse which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court; impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Further, it proposes that domestic abuse complainants would automatically be eligible for special measures in the criminal courts and that a new “office of the Domestic Abuse Commissioner” would be established to improve the response and support for victims across public services.
The Ministry of Justice has issued a call for evidence on whether the Code of Practice that supports the Mental Capacity Act 2005 should be revised. The MoJ said: “It is important that we ensure that the Code remains relevant and places individuals at the very heart of the decision-making process. The questions in the call for evidence are designed to inform the Government’s decision-making on which aspects of the Code require revision.”
The Ministry added that the proposed Liberty Protection Safeguards – which will replace the Deprivation of Liberty Safeguards – are to be supported by a separate, brand-new Code of Practice that would complement and be an integral part of the revised part the MCA Code of Practice. The call for evidence opened on 24 January 2019 and closes in 7 March 2019.
Department of Health and Social Care consultation on training on learning disability and autism for health and care staff has opened and will close on 12 April 2019.
Unwise decisions made by a vulnerable adult with capacity can be overridden by the courts under the inherent jurisdiction, when the court determines that there is a need for protective measures.
A Local Authority v BF  EWCA Civ 2962
BF was a 97 year old man who suffered from diabetes, osteoarthritis and was blind in both eyes. He lived in a bungalow with his son KF following the death of his wife. KF suffered with drug and alcohol problems and was said to intimidate visiting care staff such that all ultimately refused to provide BF with care at home.
The bungalow fell into squalor and the local authority issued proceedings for the father and son to vacate the property whilst it was renovated and made habitable. Having returned home, the local authority found that BF was again living in squalor, partially clothed and had not eaten nor drunk for a number of days. The local authority was concerned that he had lost capacity to make decisions about where he lived and removed him into respite care. An ex parte order was granted by Francis J, restraining BF from returning home and requiring him to remain in residential care pending further order of the court. BF agreed to abide by the court’s order and to submit to a capacity assessment.
A capacity report by a consultant psychiatrist in November 2018 confirmed that BF had capacity to make decisions on where he should live and whether his son should live at the property.
Hayden J heard evidence and submissions on capacity and BF participated in proceedings by telephone. BF reiterated that he wished to return home to his bungalow to live with KF. The local authority accepted the evidence that BJ had capacity and applied to lift the injunction. However, Hayden J declined the application and extended the injunction until further order. Hayden J held that it was lawful for the court under the inherent jurisdiction to impose welfare decisions on vulnerable adults who otherwise have capacity.
This decision was appealed by both the local authority and BF who maintained inter alia that the order was in breach of BF’s Article 5 rights. The court, with Baker LJ giving the leading judgment, upheld Hayden J’s decision and refused the appeal. He determined that BF was a vulnerable adult of “unsound mind” and in an emergency situation he could be deprived of his liberty in the absence of medical evidence of mental disorder without infringing his Article 5 rights.
Case of clinical negligence and false imprisonment by failing to undertake a capacity assessment
Esegbona v King’s College NHS Trust  EWHC 77 (QB)
This case concerned a failure to follow the principles of the MCA in relation to the discharge from hospital of a seriously ill 68 year old woman.
The events took place in 2010 and 2011. Mrs Esegbona was admitted to hospital from A&E and required repeated admissions to intensive care due to a range of health problems. When she was ready to be discharged the Trust’s staff repeatedly ignored her express wish to have the tracheostomy removed and go home to her family. For over three months, the Trust failed to comply with its duties under the Mental Capacity Act 2005, and was said to have deliberately excluded her family from any decisions concerning her future care, moving Mrs Esegbona to a nursing home many miles away from her home and family. She was discharged 4 months after being assessed as medically fit for discharge, and 8 months after being admitted. She died around 10 days later, having removed the tracheostomy tube and suffered a cardiac arrest.
The claim was brought by Mrs Esegbona’s daughter alleging negligence by the Trust for failing to pass on information to the nursing home about the risk of the tracheostomy tube falling out or being removed by Mrs Esegbona on purpose, and false imprisonment for the period after she was deemed fit for discharge and wanted to return home, yet remained in hospital.
There was no disagreement that a failure to pass on information about the tracheostomy tube to the nursing home was negligent. The court found that had the information been shared then Mrs Esegbona would have been provided with 1:1 care at all times, and that her eventual death was due to a deliberate removal of the tube.
The court also found Mrs Esegbona had been falsely imprisoned at the Trust hospital for 119 days. Her period of unlawful imprisonment began when she and her family expressed the clear wish for her to go home, at which point HHJ Coe accepted that “there should have been an urgent, comprehensive and optimal assessment of her capacity followed by either her taking her own discharge or a best interests meeting.” In addition, the court found that it was a breach of duty by the Trust not to have told the nursing home that Mrs Esegbona had wanted to go home and did not want to be in the nursing home.
The court awarded £130 a day for the false imprisonment (i.e. a total of £15,470), concluding that if the MCA processes had been followed correctly, Mrs Esegbona would either have been discharged home with a package of care or to a nursing home. £5,000 in aggravated damages was also awarded in light of the exclusion of the family in the decision-making process; the fact that the detention occupied the last months of Mrs Esegbona’s life; and that the defendant failed to act upon the clear advice of its own psychiatrist about the need for a capacity assessment and a best interests meeting.
This case serves to strengthen the approach to damages taken in the deprivation of liberty HRA case of Essex County Council v RF & Ors (known as the “Fluffy” case)  EWCOP 1 in which a 91-year old man was removed from his home and his pet cat, Fluffy, in distressing circumstances and was placed in a locked dementia ward. In that case the level of damages for the unlawful deprivation of an incapacitated person’s liberty were assessed to be between £3000 and £4000 per month.
How to assess capacity for social media and internet use?
Re A (Capacity Social Media and Internet Use- Best Interests)  EWCOP 2
A is a 21 year old gay man who has a learning disability and impairment in adaptive social functioning and executive functioning. The court was asked to make capacity declarations and best interests decisions regarding A’s residence, contact (with family and others), care arrangements, property and financial affairs, capacity to consent to sexual relations, and internet and social media use. It had been found that A had been extensively accessing extreme pornography online some of which was illegal, and that he had made contact with a large number of men locally, nationally and internationally, some of whom were known by the police to be sexual predators and sex offenders.
Mr Justice Cobb’s view in this, and in the case of ‘B’, is that there are particular and unique characteristics of social media networking and internet use which distinguish it from other forms of contact and care.
The judgment considered the ‘relevant information’ under section 3(1)(a) MCA 2005 which A needs to understand, retain, and use and weigh up, including:
- i) Information and images shared on the internet or through social media could be shared more widely, including with strangers, without the person knowing or being able to stop it;
- ii) The sharing of personal information or images (and videos) can be limited by using ‘privacy and location settings’ on some internet and social media sites;
iii) Placing rude or offensive material or images (including videos) on social media sites, or sharing those images, might be upset or offended people;
- iv) Some people you ‘talk to’ online, who you don’t know, may not be who they say they are, and someone who calls themselves a ‘friend’ on social media may not be friendly;
- v) Some people you ‘talk to’ on the internet or through social media, who you don’t know, may lie, exploit, or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm;
- vi) Looking at or sharing extremely rude or offensive images, messages or videos online may get you into trouble with the police, because you may have committed a crime.
An ‘internet access and safety’ care plan produced by the Local Authority was found to be in A’s best interests. This includes daily limits to A’s supervised access to an iPad owned by the service that supports him, a financial cap to his is phone contract, his mobile device does not have the capability to access the internet and staff check his mobile phone for messages on a daily basis to support him to deal with unwanted text messages, and ensure that he is not engaging in inappropriate communications with others.
The question of capacity to communicate with strangers via social media and consent to sexual relations
B (Capacity: Social Media: Care and Contact)  EWCOP 3
Miss B is a woman in her 30’s with learning disabilities. Over the last few years social care staff had become concerned about her use of social media. Miss B uses her mobile phone to communicate by Facebook, WhatsApp, and Snapchat, both with people whom she knows, and with strangers. The concern was her routine use of social media to disclose personal information about, and/or imagery of, herself with a view to meeting with strangers.
The court was asked to make a range of capacity decisions in relation to Miss B’s capacity to litigate, to manage her property and affairs, to decide where she resides, to decide on her package of care, to decide who she has contact with, to use the internet and communicate by social media and to consent to sexual relations.
Mr Justice Cobb determined that capacity to engage in social media for the purposes of online ‘contact’ is distinct from general consideration of other forms of direct or indirect contact; and wider internet use is different from general issues surrounding care.
He noted that there are unique characteristics of social media networking and internet use which distinguish it from other forms of contact, and in the online environment there is significant scope for harassment, bullying, exposure to harmful content, sexual grooming, exploitation (in its many forms), encouragement of self-harm, access to dangerous individuals and/or information – all of which may not be so readily apparent if contact was in person.
He concluded that Miss B currently does not have capacity to decide to use social media for the purposes of developing or maintaining connections with others. He made an interim declaration only, under section 48 MCA 2005 at this stage, and ordered that Miss B should be offered help and education in this regard.