Court of Protection Newsletter #1714.02.20
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.
Edited by Jacqueline Thomas and written by Aaqib Javed.
Thanks for reading.
Provisions in the Mental Capacity Act 2016 relating to deprivation of liberty have commenced in Northern IrelandRead More
The Scotland based Independent review of Learning Disability and Autism in the Mental Health Act has published its final reportRead More
The vice-president of the Court of Protection has published guidance where a decision relating to medical treatment arises and where thought requires to be given to bringing an application before the CoP.
Royal Borough of Greenwich v EOA  EWCOP 54
Court of Protection: Williams J – 16 October 2019
This case concerns EOA, a vulnerable 18-year-old who was living with Mrs W, his foster carer. EOA’s foster placement was ending and alternative living arrangements had not yet been made. The Local Authority (‘LA’) sought orders concerning EOA’s immediate residence whilst the judge made clear that the wider issues concerning EOA’s welfare were still pending.
The LA proposed that EOA was to live in a residential placement referred to as ‘T’. The Judge noted that this arrangement would inevitably restrict EOA’s liberty. EOA himself did not want to be part of the proceedings and did not consent to the LA’s proposal. The Judge stated that, because of previous proceedings, the current position was that EOA lacked capacity; although this may be in dispute, the immediacy of the present situation meant that the court needed to make decisions based on his best interests.
At the time of the hearing, there were no alternative residential placements either suitable or available. The Judge expressed that EOA should not be “walk out of the door of Ms W’s” without accommodation in place.
The Judge decided that the LA’s plan to place EOA at ‘T’ was appropriate but reminded all concerned that the matter would come before the court again so that EOA’s “capacity and…medium to long-term future” could be decided. The judge made these interim declarations in the hope that EOA would comply willingly but left open the possibility of authorising “such measures in a proportionate and staged implementation to ensure that he gets there”.
A (fact-finding)  EWCOP 58
Court of Protection: HHJ Clayton – 13 September 2019
This hearing arose because of TQ making an application to be made VT’s health and welfare deputy. VT was a young adult who until very recently had been living in a children’s residential placement. He had a range of disabilities including severe epilepsy, restricted mobility, and the need for 24-hour care. Importantly, he did not have any contact with his biological family and TQ had previously cared for him as a professional key worker.
The application was primarily made because the Birmingham Children’s Trust (‘The Trust’) and NHS Birmingham and Solihull Clinical Commissioning Group (‘CCG’) sought to restrict TQ’s appointment as a deputy because a policy decision had been made by The Trust which prohibited previous professional carers undertaking such a role.
HHJ Clayton was critical of the way The Trust and CCG conducted themselves in this case. The judge highlighted that their evidence at times displayed a lack of understanding of the principles of the Mental Capacity Act 2005 (‘MCA’). She criticised the evidence presented by the Trust as “lack[ing] the required information as to any best interest decision.” As well as this, two members of staff from The Trust had made unsubstantiated allegations against TQ; namely, that TQ had failed to promote VT’s best interests and had made this application in order to obtain a financial advantage. The judge found that this type of analysis by The Trust was not in keeping with the person-centred approach needed when making a decision.
Further, the judge was not content in the manner that the policy had been applied in this case. The evidence of The Trust and the CCG was said to be presented in such a way that policy was promoted as the starting point in the discussion rather than it being used in an informative and fair-minded way and which was in accordance with the MCA and its relevant guidance.
HHJ Clayton then found that there was an obvious benefit to have TQ as a deputy to VT. The judge praised TQ for her “unwavering commitment to P and his right to have his voice heard.” There was “no hesitation in appointing her [as a] PWD” and the court emphasised that “it is clear she (TQ) cares greatly for him and so offers him something which no one else does in his life”.
The Trust and CCG were further reproached by the court for their failure to carry out capacity assessments and to record them in writing. There was a separate issue in that P “was unlawfully deprived of his liberty and without the protection of the deprivation of liberty safeguards for a period of time” though this was not the focal point of the hearing.
The judge made it clear that “serious concerns…have arisen” and that the “failure to comply with the MCA 2005 was not a technicality. It led to a wholesale failure of best interest decisions in respect of P as to his contact with TQ.” Considering all this, both The Trust and the CCG were ordered to pay the costs of the Official Solicitor (OS) who had been representing VT as the application was only made by TQ because of VT’s “rights being violated and her despair at the failings of the system.”
Cheshire West And Chester Council v PWK  EWCOP 57 (01 July 2019)
Court of Protection: Sir Mark Hedley- 1 July 2019
This was an application by the LA for declarations of incapacity to be made in respect of PWK. These declarations concerned six areas: “first, where to reside; secondly, care and support needs; thirdly, contact with others; fourthly, social media and the internet; fifthly, financial and property affairs; and lastly, use or possession of his car provided by the Motability scheme.” PWK, a young adult with autism, learning difficulties and a visual impairment, was at the time subject to a care package put together by the LA pursuant to s117 of the Mental Health Act 1983 (‘MHA’).
The court heard expert evidence from a consultant psychiatrist that supported the view that PWK lacked the relevant capacities. Importantly, “when PWK was relaxed and in a good place he might well be regarded as having capacity. However, when he became anxious his position could be very different…many things…could trigger anxiety and quite often his carers would be confronted with irrational behaviour that could be difficult to manage.” The judge, Sir Mark Hedley, understood that PWK’s capacity could fluctuate. This meant that at times PWK could not weigh relevant information when making a decision.
Appreciating that PWK may at times be said to have capacity, the judge stated that “it seems…that the closer the protected person is at the moment of actual decision to capacity, the greater the weight that his views must carry and of course, any decision made must take in to account that he may acquire capacity and, therefore, it must not be beyond change.” Taking all this into account, PWK was found to lack capacity to conduct these proceedings or to “determine his residence or care or his contact with others or his management of his own affairs.”
The court had earlier heard that the use of the car was of particular concern for PWK and his responses when giving evidence in court became “wholly dominated by his car”. Focusing on the car, the judge concluded: “first, that PWK cannot drive it himself; secondly, no one can compel an unwilling carer to drive it for him; and thirdly, no one has attempted to assert a right to drive in the face opposition from the care providers”. The judge did not make a best interests determination about this as it already formed part of the care package and because the judge’s focus was predominantly on capacity rather than best interests. The judge ordered the matter to be reviewed at least once every 12 months.
D (A young man), Re  EWCOP 1
Court of Protection: Mostyn J – 20 January 2020
D, a 20-year-old man, had been impaired by a severe form of autism since the age of 3 and had, from then onwards, been cared for by his father and his stepmother (‘C’). His disability meant that he required “constant, highly skilled therapeutic support” which was provided to him by his father, C, and the LA. D’s biological mother, the applicant in these proceedings, applied “for permission to make a substantive application” concerning the nature and frequency of contact she had with D. A permission hearing was required as the mother did not fall into one of the categories in where permission is not required pursuant to s50(3) of the MCA.
At the time and since 2012, the mother’s contact with D was quarterly, lasted for 2 hours a session, and was supervised. She wanted these arrangements to be revised and sought to establish contact fortnightly, at her home, and in an unsupervised setting.
Mostyn J refused the application and dismissed the mother’s argument that a change in the contact regime should take place. He considered the threshold needed for the mother to be granted permission under s50 of the MCA and concluded that it was the same as a judicial review hearing and accordingly, to obtain permission the applicant “has to demonstrate a good arguable case” and “a real prospect of success or some other good reason why an appeal should be heard”. The judge did not place any weight on the fact that D had now surpassed the age of 18 and maintained that the decision to grant permission must be made in conjunction with evidence that it is in D’s best interests for a “full welfare investigation of the current contact arrangements” to take place. The judge was “not satisfied that circumstances have changed to any material extent since the contact regime was fixed seven years ago and confirmed…two years ago.”
Additionally, the evidence presented in court demonstrated that D expressed worry and distress both before and after his mother’s current quarterly visits. There was no material benefit to D if the permission was granted and as a result, the application was refused.
Guys And St Thomas NHS Foundation Trust (GSTT) & Anor v R  EWCOP 4
Court of Protection: Vice President of the Court of Protection Hayden J – 29 January 2020
Hayden J was asked to make anticipatory declarations concerning a woman (‘R’) who was 39 weeks and 6 days into her pregnancy. R was diagnosed with Bipolar Affective Disorder that can cause psychotic episodes. R was detained in a psychiatric ward and her obstetric care was being provided for by GSTT. She had previously voiced her opposition at having a caesarean section.
R’s treating clinicians agreed that she had the capacity to make decisions regarding her antenatal and obstetric care. However, there was a risk of R’s mental health deteriorating during the pregnancy which would likely lead to her losing capacity during labour. The applicants sought declarations from the court concerning the lawfulness of medical treatment if and when R would be in an incapacitous state. The application was heard in August 2019 with judgment being delivered extempore.
When initially delivering the judgment, Hayden J declared it lawful for R to have a caesarean section in the event of her losing capacity during childbirth. As it so happened, no such complications arose during the birth. Nevertheless, a full judgment has now been published which explains the judge’s reasoning.
The court, faced with the prospect of R losing capacity in the future, had to set out the framework of applicable law and decide on the legality of R being given treatment during labour. Hayden J made clear that s16 of the MCA could not apply in this scenario as it expressly concerned those without capacity at the time the court was being asked to make a decision. The judge concluded that s15 of the Mental Capacity Act could apply in this scenario as it applied when declaring the “lawfulness or otherwise of any act done, or yet to be done, in relation to that person.” Despite this, s15 itself is not sufficient to authorise the deprivation of liberty. The judge turned to the inherent jurisdiction so that a proper “mechanism to authorise the contemplated intervention as being lawful” could be identified.
The judge stressed that it was important that R’s wishes and feelings were to be respected and given appropriate weight. However, it was essential to remember that the court had to have a “‘reasonable belief’ as to where P’s best interests truly lie” once R had lost capacity. There was no evidence that “R was motivated by anything other than an honest belief that this [a natural birth] was best for both her and her baby” and as such, there was a reason for the court to conclude that “R would wish for a safe birth and a healthy baby”.
Hayden J reiterated previous case law that demonstrated a woman’s “right to jeopardise the life and welfare of her foetus.” However, the facts of the case did not lead the judge to believe that this was the motivation for R refusing a caesarean section. As such, declaratory orders were made which sanctioned the potential medical treatment sought by GSST.
QD (Jurisdiction: Habitual Residence)  EWCOP 56
Court of Protection / Inherent Jurisdiction of the High Court: Cobb J – 19 December 2019
QD, a man in his 60s suffering from both Parkinson’s and Alzheimer’s disease, was, for several years, living with his second wife, KD, in Spain. On the 3rd of September, his two adult children brought him back to England. This journey was made without KD’s knowledge. The children applied to the Court of Protection for the following orders to be made; “that he (QD) reside at a care home in England, that he not return to Spain, and that he have only supervised contact with KD.”
In their evidence, the children claimed that their motivation for bringing QD back to England was for his benefit as “friends and neighbours of their father” had communicated to them “that he was not being cared for appropriately by KD.” QD’s wife meanwhile had applied to the Spanish courts who, on the 24th of September 2019, accepted jurisdiction of her “petition for a declaration of incapacity” with the ultimate aim being a recognition of KD as QD’s legal guardian.
KD raised the issue of habitual residence as a preliminary matter. The Court of Protection is only conferred jurisdiction under the MCA if at the relevant time the individual concerned is habitually resident in England and Wales. Habitual residence is not defined in this context but previous case law has determined it to be based on individual facts and circumstances.
The children invoked the common law doctrine of necessity in justifying their actions when bringing QD back to England. They further submitted that the Court of Protection had jurisdiction as it was an “urgent matter” and as such, the MCA would still apply. Alternatively, they invited the court to apply inherent jurisdiction when dealing with their application. KD opposed these submissions and asked the judge to find that the Spanish courts had jurisdiction instead.
Cobb J was not persuaded by the arguments attempting to confer jurisdiction on the Court of Protection and instead he found that QD was habitually resident in Spain. He was “influenced by a constellation of factors, most prominent among them being:
i) That when he had capacity, QD chose to live in Spain, and this was (it appears) to have been his permanent home;
ii) QD has now lived in Spain for many years;
iii) QD has more than one property in Spain;
iv) QD received health care in Spain;
v) QD was integrated into life and a community in Spain where he appeared to have a social life;
vi) It is conceded by the Applicants that prior to 3 September 2019, QD was habitually resident in Spain;
vii) It is, of course, the country in which his wife continues to live; moreover, she had sought to regularise the care arrangements for him in Spain by initiating proceedings for legal guardianship in that country some weeks before QD was relocated to England.”
Cobb J admonished the applicant children for the “stealthy” manner in which they transported QD to England. He declared that the matter could not be considered urgent, as there was no “threat to life or safety” or an “immediate need for further or other protection.” As well as this, the inherent jurisdiction would not apply as the MCA regime was in place and capable of dealing with matters of this nature; to go behind statute would be an act of subversion.
Notwithstanding the above, the judge did find that QD did not have capacity to decide his living arrangements. The MCA allowed him to authorise QD’s residence at the care home and the subsequent deprivation of liberty. The matter may not be a foregone conclusion however as although “it is for the Spanish administrative or judicial authorities to determine the next step”, they may well “confer jurisdiction on the English courts to make the relevant decision(s).”