Court of Protection Newsletter #1613.12.19
Welcome to the December 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.
Thanks for reading.
A report has been published by the NHS titled ‘Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2018-19′. The report can be viewed at- https://digital.nhs.uk/data-and-information/publications/statistical/mental-capacity-act-2005-deprivation-of-liberty-safeguards-assessments/england-2018-19
The Mental Welfare Commission for Scotland have produced a voting FAQ sheet which can be accessed at- https://www.mwcscot.org.uk/news/faqs-voting-uk-general-election-2019. A blog looking at similar issues has been authored by Professor Judy Laing from the University of Bristol and can be found at https://legalresearch.blogs.bris.ac.uk/2019/11/mental-disability-and-voting-rights-bridging-the-knowledge-and-uptake-gap/.
A Local Authority v H (No 2)  EWCOP 51
Court of Appeal: Sir Mark Hedley – 19 February 2019.
The local authority asked the Court of Protection to reconsider previous capacity rulings concerning H and review the best interests provisions should the court make any declaration. Particularly in focus was H’s capacity to consent to sexual relationships and contraception.
In 2011, H had been found to be incapacitous with respect to “any decisions in relation to her residence, care and support arrangements, contact, consent to sexual relations and contraception”. At the time of this new hearing, H had moved into her own flat though she was still subject to significant restrictions of liberty. The court found that H has “capacity to consent to sexual relationships and also has capacity to deal with issues of contraception”.
What was left was for the court to review were the best interests provisions “because of the continuing declarations of incapacity in relation to care, residence and contact”. The judge was mindful of the wishes and feelings of H as well as the intrusion the outcome of these proceedings would have on her right to a private and family life. Accordingly, the judge clarified that he intended to make an order that was “necessary and proportionate” and that it “is for H to make her own decisions for good or ill as to how she then conducts herself”.
The court approved the LA’s care plans but emphasised that H must be afforded the maximum freedom without curtailing the court’s protective role concerning H or anyone who she may have sexual relations with. Mr Justice Hedley declared that the LA has the power to maintain and monitor a list of visitors to H’s flat along with a power to veto entry. However, the LA was to have no responsibility for what happened when the door of the flat was closed after admittance.
CD v London Borough of Croydon  EWHC 2943 (Fam)
High Court/Court of Protection: Cobb J – 14 August 2019.
This case concerned CD who was at the time a 65-year-old man suffering from depression, dysthymia and memory deficit. The local authority was seeking declaratory relief. The LA wished for the judge to exercise the court’s inherent jurisdiction whilst CD’s counsel submitted that the statutory regime of the Mental Capacity Act 2005 should be used.
Cobb J summarised the use of inherent jurisdiction as follows:
“a. first the inherent jurisdiction may be deployed for the protection of vulnerable adults,
b. secondly in some cases a vulnerable adult may not be incapacitated within the meaning of the 2005 Mental Capacity Act but may nevertheless be protected under the inherent jurisdiction;
c. third that in some of those cases capacitous individuals may be of unsound mind within the meaning of article 5(i)(e) of the European Rights Convention.
d. fourth, in exercising my powers under the inherent jurisdiction I am bound by the European Convention and the case law under the convention and must only impose orders that are necessary and proportionate and at all times have proper regard to the personal autonomy of the individual; and
e. fifth and finally, that in certain circumstances it may be appropriate for a court to take or maintain interim protective measures while carrying out all necessary investigations.”
The judge declared that CD lacked capacity and that his best interests were served by “directions [being made]…without delay which enable the Local Authority to gain access to CD’s accommodation in order, first of all to provide appropriate care for CD himself and secondly to make his accommodation safe for human habitation.” Cobb J reiterated that “it is more appropriate, where statute provides a route, that the statute is used.”
JK v A Local Health Board  EWHC 67 (Fam)
High Court: Lieven J – 13 November2019.
This case was heard by Lieven J who dealt with the interaction between the Mental Capacity Act 2005 (MCA), the Mental Health Act 1983 (MHA) and inherent jurisdiction. The issue in question was whether it was lawful to force-feed someone detained under the MHA who was refusing to eat. Interestingly in this case, JK a 55-year-old man with autism, had made an advance decision to refuse medical intervention even if it were to cause his death.
JK was on remand having been arrested and charged with murder. The alleged criminal offence took place in September 2019 and in late October JK was moved from prison to a psychiatric hospital under s.48 of the MHA after 2 medical practitioners had determined him to be suffering from a mental disorder. JK refused to eat after arriving in prison and made it clear that he wanted to die. He returned to eating food after 23 days ostensibly to retain capacity for this hearing. JK also made the advance decision on the 28th of September to refuse medical intervention if his life was at risk. This decision was understood to be valid subject to a determination of JK’s capacity.
The Health Board’s original application was for:
- a declaration that it is lawful for treatment to be provided pursuant to s.63 of the Mental Health Act 1983 (MHA) that JK can be force fed;
- in the alternative, a declaration under the inherent jurisdiction that such treatment is lawful; and
- a declaration under the Mental Capacity Act 2005 (MCA) that an advance decision could be disregarded as a result of actions by P that were inconsistent with it.
The Health Board swiftly conceded that inherent jurisdiction did not apply in this case and that at the time of the hearing there was insufficient evidence for the court to determine JK’s best interests and whether force-feeding would be an appropriate and lawful treatment. The court also heard medical evidence which supported the fact that JK had the capacity to refuse food and medical intervention as well as the capacity to conduct proceedings.
Lieven J affirmed that the primary issue was if the s.63 MHA terms had been met. If so, JK’s consent would not be needed before administering treatment. The judge determined that the following issues had arisen or could arise in this case;
“a) Does JK have capacity to make a decision to refuse food?
b) Where the court is invited to make a declaration that a proposed course by the Health Board is medical treatment under s.63 MHA, what legal test should the Court apply?
c) Is the proposed treatment, i.e. force feeding, treatment that falls within s.63?
d) If the proposed treatment does not fall within s.63 can the court authorise the force feeding pursuant to its inherent jurisdiction? this raises two sub-issues;
Is there a lacuna in the statutory scheme which the inherent jurisdiction can appropriately fill?
Is JK a vulnerable person within the meaning of SA (Vulnerable Adult with Capacity: Marriage)  1 FLR 867?
e) Is it appropriate on the facts to order that JK can be force fed?”
The judge determined that the starting point is that every citizen who is of age and sound mind has the right to make decisions about medical treatment even if it was to lead to death. There are three circumstances when treatment can be imposed- “if they lack capacity under the Mental Capacity Act 2005; if they are detained under the Mental Health Act 1983 and the treatment falls within the terms of s.63 (or s.58); or if they can be categorised as ‘vulnerable’ under the High Court’s inherent jurisdiction.” Lieven J found that JK could not be classified as ‘vulnerable’ because there was a lack of coercion or third-party influence on his decision-making. As an aside, it is interesting to see the realm of inherent jurisdiction restricted in this case whilst in the case of CD (summarised in this newsletter) Cobb J seemingly offers a more flexible interpretation of the same principle.
For a medical process to be classed as treatment under s.63 of the MHA it must be shown that it alleviates or prevents the worsening of a “mental disorder from which he (JK) is suffering”. The judge found that JK’s refusal to eat was a manifestation of his autism and, after being guided by medical evidence, concluded that JK’s response could be his way of dealing with a crisis. It followed that force-feeding could be treatment under s.63.
It is important to note that “the court…[did] not made a decision regarding whether it is in JK’s best interests to be force fed” and there was no assessment of whether the treatment would alleviate or prevent a worsening of the disorder as per s.145(4) of the MHA. Lieven J reminded the parties that the court would have to consider article 3 which prohibits “inhuman or degrading treatment” given the invasive nature of the treatment being considered by the Health Board.
As JK was now eating, the current position was that the Health Board were drawing “up a detailed treatment plan… If JK reverts to refusing to eat, and the Health Board decide pursuant to s.63 that he should be force fed, then the matter will need to be restored to court”.