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Court of Protection Newsletter #1515.11.19

Welcome to the August 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.

Edited by Jacqueline Thomas and written by Aaqib Javed.

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Deputyship fee refunds scheme launched

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Local Government and Social Care Ombudsman found Salford Council failed to review a woman’s care plan for 5 years

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LGO has criticised a Local Authority for taking 21 months to assess a vulnerable woman’s needs

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Policy and Consultations

The Mental Welfare Commission for Scotland has concluded that more support is needed for people with autism and complex needs.

‘The state of health care and adult social care in England 2018/19’ has been published by the Care Quality Commission.

Cases Review

CP, R (On the Application Of) v North East Lincolnshire Council [2019] (EWCA) Civ (EWCA) Civ 1614

Court of Appeal: Haddon-Cave LJ, Moylan LJ, Flaux LJ – 03 October 2019.
LJ Haddon-Cave gave judgment in this case concerning the LA’s refusal to pay for CP’s attendance of a provision at a charitable organisation founded by CP’s father JP. CP was 22 years old at the time of the hearing and has global development delay, learning difficulties and autism. She cannot communicate verbally and has been heavily dependant on care from others throughout her life.

The Court of Appeal judges were hearing an appeal against the High Court’s decision to dismiss CP’s challenge to the LA’s failure or refusal to make certain payments related to her attendance at ‘Fix n’Kiks (‘the charity’). The LA had been paying for CP’s attendance at the charity since 17th November 2017 by incorporating the costs into her personal budget. CP was judicially reviewing the period between 11th April 2016 and 17th November 2017 during which the LA did not include the payment for the charity in her personal budget pursuant to the relevant provisions found in the Care Act 2014.

The Court of Appeal found that there had been a clear breach of the Care Act as well as the relevant statutory guidance. Making a finding against the LA’s position, the court decided that a provision, such as one provided by the charity, could be “education and training” under the Children and Families Act 2014 and did not mean that it could not also provide social care; and vice-versa.

The court was somewhat critical of the High Court’s decision which was being appealed and stated that “a breach of a statutory duty is a breach of statutory duty. It is, by definition, unlawful conduct. Unlawful conduct by a public body cannot merely be discounted or ignored.”

LJ Haddon-Cove cut through the legal complexities in this case by focusing on the “straightforward ” issue at “the heart of this case [which] is a dispute as to whether the Council should have included the cost of CP’s attendance at Fix n’Kiks in CP’s original Care Act 2014 personal budget from the moment when CP’s ASC plan was first drawn up on 11th April 2016, and whether compensation is now due to CP to make good the period for which she was not funded for these costs, namely from 11th April 2016 to 17th November 2017”.

The judge found that the events surrounding CP’s personal budget and the charity “amounted to a clear breach by the Council of its duty under s. 26 of the Care Act 2014, and its linked duties under ss. 18, 24 and 25 of the Care Act 2014, as well as a breach of the relevant statutory guidance”. The appeal was allowed and the LA ordered to compensate CP for her accrued right to the cost of her attendance at the charity during the period from 11th April 2016 to 17th November 2017.

On a separate point, the LA argued that JP’s involvement in this case was that of the ‘real claimant’ as he was using the proceedings to ‘inappropriately’ benefit from the claim. The Court of Appeal did not find any evidence that the charity was not genuine and therefore there was no conflict of interest which would prevent JP acting as a litigation friend. Haddon-Cave LJ said: “In my view, this argument is misconceived. There is no conflict of interest on the part of Mr JP. The claim is brought in the name of CP because it is her legal rights which have been breached and it is her legal entitlement to compensation from the council for failing to fulfil its statutory duty to provide fully for her care needs.

Read judgment

DO, Re (authorisation of deprivation of liberty) [2019] EWCOP 47

Court of Protection: HHJ Hilder – 22 October 2019.

The conduct of the LA came under intense scrutiny during this hearing which arose as a result of the Official Solicitor’s concerns which were raised with the court. The LA made an application under the streamlined procedure set out in part 2 of Practice Direction 11A in an effort to authorise deprivation of liberty. This process should be used when the issues are non-contentious.

JDO is a person with very complex needs who has been living at a supported placement which amounted to a deprivation of liberty. At the time of the initial application being made (November 2018), the LA showed the court a prepared statement which had been signed by OD (the mother of JDO) after it was presented to her. This statement apparently supported a COPCOL11 application. In January 2019, the court was sent a handwritten letter from DD (the father of JDO) which communicated both parents’ concerns with the LA’s plans. The court was concerned that this was now a contentious claim that may not be suitable for the streamlined process.

The matter came before HHJ Hilder. The LA argued the appropriateness of their conduct on 3 grounds:

That it was up to the LA to decide whom it consulted with respect to JDO’s care;

That the duty of full and frank disclosure was limited and did not require an obligation to communicate to the court opinions (in this case of the parents) which may not be based on facts, and;

That the scope of consultation should be limited to persons who offer an alternative to the Applicant’s proposals.

The judge made it clear that the duty of the Applicant (usually the LA) was to make full and fair disclosure of material facts as well as a duty to inform the court of the views of people who could reasonably fall within the category of persons who hold a contrary view to the Applicant. HHJ Hilder stressed that the “reliability and completeness” of the process needed full and frank disclosure; this was fundamental when complying with Article 5. It was also improper of the LA to present a prepared statement for OD to sign. This was not in keeping with the LA’s duties to consult and instead put “words into her mouth”.

HHJ Hilder concluded that the swift identification of serious deficiencies with the LA’s application showed the “robustness” of the streamlined process. The matter was therefore not one that could be dealt with under the streamlined process and instead would have to be heard in the usual manner.

Read judgment

An NHS Foundation Trust v AB & Ors [2019] EWCOP 45

Court of Protection: MacDonald J – 21 October 2019.

This case concerns AB, a woman who lacks capacity, and who was the subject in the previously summarised cases ‘Re An NHS Trust v AB [2019] EWCOP 26’ and ‘Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215’.

The applicant in this matter, ‘the Trust’, asked the court for permission to fit an IUD in AB at the same time a caesarean section is performed with the purpose of avoiding a future pregnancy. The application had been opposed by the Local Authority and the Official Solicitor (for AB) although both parties moved to a neutral position once evidence had been given. CD, AB’s mother, opposed the application but was not represented.

At the time of this application, AB was a 25-year old woman who had moderate learning difficulties. She was 38 weeks pregnant. AB came to the UK from Nigeria at the age of 13. She had subsequently been adopted in the UK. However, she became pregnant after visiting Nigeria and although not conclusive, there were strong indications that the perpetrator may have been a family friend who also ordinarily resided in the UK.

The court heard that AB had been given extensive LA support from 2013 until September 2018 at which point, the LA contended, the support became ‘informal’. After hearing the evidence, the court decided that the post-birth “supervision plan of the local authority contain[ed] no information at all regarding how the risk of unplanned pregnancy will be managed for AB if and when she returns to visit Nigeria”. Further medical evidence obtained on the 25th of September 2019 demonstrated that AB lacked capacity to consent to contraception The evidence stated that a second pregnancy would be very detrimental to AB.

After hearing all the evidence, the court decided that inserting an IUD was in AB’s best interests and granted the application. HHJ MacDonald found that when assessing risks, there was an appreciable risk of further pregnancy and this, given the medical evidence, would not be a favourable position for AB to find herself in. AB lacked capacity but the court did comment on how difficult it was for a case like this to be decided when AB’s wishes and feelings could not be clearly appreciated.

Read judgment

The Hospital v JJ [2019] EWCOP 41

Court of Protection: Cobb J – 15 August 2019

This application was made by a hospital (‘the Trust’) who sought an order stating that it is in JJ’s best interests that all reasonable and proportionate measures, including physical restraint, are used to administer insulin for his benefit. The court swiftly made the order sought in a short judgment.

JJ at the time was a 23-year old man who had been diagnosed with type 1 diabetes in May 2019 (some 3 months before the hearing). He was being treated as an inpatient by the Trust but had been non-compliant and objected to receiving insulin which managed his diabetic symptoms. Cobb J heard that JJ’s refusal would cause life-threatening ketoacidosis which would lead to his death within a week.

Cobb J, after hearing evidence from the treating physician, concluded that JJ lacked capacity in relation to the treatment of his diabetes. The court also declared that JJ’s best interests were that he was to be treated under the plan laid out by the Trust. Cobb J found it necessary and proportionate to make the order that the Trust sought and that reasonable restraint could be used in order to administer the treatment whilst accepting that JJ’s Article 5 rights were engaged in this respect.

Read judgment

Lincolnshire County Council v AB [2019] EWCOP 43

Court of Protection: Keehan J – 08 May 2019.

The Local Authority made an application for the court to determine P’s “capacity and best interests, specifically with regard to contact with sex workers.”

P is a 51-year-old man who has learning disabilities, is autistic and suffers from alcohol-related problems. He had been detained under the Mental Health Act 1983 on 10 separate occasions before being admitted to a number of psychiatric facilities from 2003 onwards and being detained therewith for 7 years. In October 2010, P moved to a placement and developed a “fascination” with female sex workers. Whilst living in supported housing, P had used prostitutes on multiple occasions and had often travelled to the Netherlands for the same purpose. The LA’s position when bringing the application in April 2018 was that they were not seeking to facilitate contact with sex workers either domestically or abroad.

P, through his litigation friend, told the court that he opposed the order being sought by the LA. P had also indicated that he struggled to develop and maintain a conventional relationship and so uses the services of a sex worker.

Mr Justice Keehan heard from a psychiatrist who had assessed P and found him to lack capacity in all relevant domains apart from the ability to consent to sex. However, the psychiatrist also concluded that P may not appreciate the risks associated with his proposed course of conduct. Specifically, there was a risk that P’s autism and learning disability may make him unaware of the “potential consequences of visiting sex workers, including the possibility of financial exploitation or involvement with the criminal justice system.”

The psychiatrist surmised “that P lacked capacity

  1. to conduct these proceedings;
  2. to make decisions about his residence;
  3. to make decisions about his care and treatment;
  4. to manage his property and affairs; and
  5. to make decisions about his contact with others.”

Keehan J delivered a succinct judgment in which he made clear that it was not appropriate for a court to sanction P’s use of prostitutes in any jurisdiction not least because any facilitation of this activity could lead to a care worker, on behalf of the LA, facing criminal offences pursuant to the Sexual Offences Act 2003.

The judge continued by stating that in any event, he would consider it wholly contrary to public policy for the court and for the LA to “endorse and sanction P having sexual relations with a woman for payment”; and notwithstanding P’s “clearly expressed wishes and his clear desires to continue to meet prostitutes for sexual activity”, he did not consider it is in his best interests to do so.

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London Borough of Southwark v NP & Ors [2019] EWCOP 48

Court of Protection: Hayden J, Vice President of the Court of Protection – 24 October 2019.

The vice president of the Court of Protection, Mr Justice Hayden, set out some general case management principles concerning delay and evidence as well as the conduct of parties in CoP matters.

This judgment concerned the living arrangements of NP, a 17-year-old girl suffering from cerebral palsy and anorexia. NP had been removed from the care of her mother (‘M’) partly because at the time of removal she was so malnourished as to being close to death. NP was subsequently hospitalised and this saw some improvement in her condition. A treating psychiatrist made recommendations as to what NP’s future treatment should be but had not reviewed NP’s medical records or all of the relevant information.

The judge reasoned that although the psychiatrist displayed “good intentions”, he had been forced to make the decisions with limited time and material. The court’s conclusion was that the parties, experts and professionals had failed to adequately share information that would be useful in informing their decision-making. Hayden J identified areas of procedure that required “real and immediate improvement”. The judge then set out 10 case management principles that parties in CoP proceedings will be expected to adopt in the future.

These principles are set out in full below:

i. Though the avoidance of delay is not prescribed by the Mental Capacity Act 2005, the precept should be read in to the proceedings as a facet of Article 6 ECHR (see: Imperial College Healthcare An NHS Trust v MB & Ors [2019] EWCOP 29). Any avoidable delay is likely to be inimical to P’s best interests;

ii. Effective case management is intrinsic to the avoidance of delay. Though the Court of Protection, particularly at Tier 3, will frequently be addressing complex issues in circumstances of urgency, thought should always be given to whether, when and if so in what circumstances, the case should return to court. This will require evaluation of the evidence the Court is likely to need and when the case should be heard. This should be driven by an unswerving focus both on P’s best interests and the ongoing obligation to promote a return to capacity where that is potentially achievable;

iii. Where, at any hearing and due to the circumstances of the case, it is not possible prospectively to anticipate what future evidence may be required, the parties and particularly the Applicant and the Official Solicitor (where instructed) should regard it as an ongoing obligation vigilantly to monitor the development of the case and to return to the Court for a Directions Hearing when it appears that further evidence is required which necessitates case management;

iv. Practice Direction 15A, Court of Protection Rules 2017 is intended to limit the use of expert evidence to that which is necessary to assist the court to resolve the issues in the proceedings;

v. The Practice Direction sets out the general duties of the expert, the key elements of which require to be emphasised:

  1. It is the duty of an expert to help the court on matters within the expert’s own expertise.
  2. Expert evidence should be the independent product of the expert uninfluenced by the pressures of the proceedings.
  3. An expert should assist the court by providing objective, unbiased opinion on matters within the expert’s expertise, and should not assume the role of an advocate.
  4. An expert should consider all material facts, including those which might detract from the expert’s opinion.
  5. An expert should make it clear—(a) when a question or issue falls outside the expert’s expertise; and(b) when the expert is not able to reach a definite opinion, for example because the expert has insufficient information.
  6. If, after producing a report, an expert changes his or her view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.

vi. In Court of Protection proceedings, the Court will frequently be asked to take evidence from treating clinicians. Invariably, (again especially at Tier 3) these will be individuals of experience and expertise who in other cases might easily find themselves instructed independently as experts. Treating clinicians have precisely the same obligations and duties upon them, when preparing reports and giving evidence as those independently instructed. Further, it is the obligation of the lawyers to ensure that these witnesses are furnished with all relevant material which is likely to have an impact on their views, conclusions and recommendations. (see: Re C Interim Judgment: Expert Evidence) [2018] EWFC B9 ). This should not merely be regarded as good litigation practice but as indivisible from the effective protection of P’s welfare and autonomy;

vii. Evidence of clinicians, experts, social workers, care specialists etc is always to be regarded as individual features of a broader forensic landscape in to which must be factored the lay evidence. One expert or clinician is unlikely ever to provide the entire answer to the case (see: Re T [2004] 2 FLR 838 ). It follows that Experts meetings or Professionals meetings should always be considered as a useful tool to share information and to identify areas of agreement and / or disagreement;

viii. When evaluating the significance of expert evidence and particularly when the issues being considered are, as has regularly been the case in the Court of Protection, at the parameters or frontier of medical or expert knowledge, this should be properly identified and acknowledged. In considering the evidence, it is always helpful to reflect that yesterday’s orthodoxies may become today’s heresies. (see: R v Harris and Others [2005] EWCA Crim 1980);

ix. Witnesses from whatever disciplines may be susceptible to ‘confirmation bias’. This is to say they may reach for evidence that supports their proffered conclusion without properly engaging with the evidence that may weaken it. ((see: Cleveland Report (report of the enquiry in to Child Abuse in Cleveland 1987 Cm 412 London: HMSO 010/1041225));
x. Consideration must always be given to relevant, proportionate written questions to an independently instructed expert.