Court of Protection Newsletter #1920.04.20
Welcome to the April 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.
Update: Case Review for SF, Re  EWCOP 15 updated 13:30 20/04/2020
Following the deluge of guidance issued over the last couple of weeks, we have listed useful links relating to Court of Protection and Community Care matters;
The Coronavirus Act 2020 is now in force. It has made significant amendments to the Care Act 2014 and Social Services and Well-being (Wales) Act 2014.
Guidance for local authorities dealing with Care Act easements has been published by the Department of Health and Social Care (DHSC).
The DHSC has also published guidance concerning “care homes, local health protection teams, local authorities, clinical commissioning groups (CCGs) and registered providers of accommodation for people who need personal or nursing care.”
The DHSC has further published guidance for health and social care staff who are caring for or treating, a person who lacks the relevant mental capacity. It can be found here.
Hayden J has issued detailed guidance for the Court of Protection arising from the COVID-19 pandemic. Latest guidance (at the time of writing), along with previous versions of the guidance.
Guidance has been provided by HMCTS relating to First-tier Tribunal (Mental Health) users and telephone hearings [pdf].
HMCTS has also released a document titled ‘Summary of Family business priorities’ [pdf] that sets out a list of work that must be done, work that will be done, and work that HMCTS will do its best to do.
A Pilot Practice Direction for the Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) has been issued.
The Court of Protection Bar Association has issued guidance on effective remote guidance [pdf].
The Mental Welfare Commission for Scotland has prepared an advisory note for practitioners who are using the Mental Health Act 1983 and Adults with Incapacity Act 2000 when caring for patients.
The NHS has published guidance on managing capacity and demand [pdf] within inpatient and community mental health services.
The Care Quality Commission’s annual report on the use of the Mental Health Act 1983 (MHA) has been published.
A document titled ‘Mitigating the risk of assumptions and biases in assessments of mental capacity – A brief for policy makers and health and social care professionals’ [pdf] has been produced by researchers from the University of Birmingham.
A document that clarifies Mental Health Casework (MHCS) procedures in light of the COVID-19 outbreak [pdf].
The Transparency Project has published a post which presents a family perspective concerning the recent case of A Clinical Commissioning Group v AF & Ors  EWCOP 16 which was heard via Skype.
The Local Government and Social Care Ombudsman has suspended “all casework activity that demands information from, or action by, local authorities and care providers, in light of the current Coronavirus outbreak.” More information can be found here.
The National Mental Capacity Forum is hosting webinars concerning issues related to Court of Protection work in the context of COVID-19. Further details, including sign-up information, can be found here.
BP v Surrey County Council & Anor  EWCOP 17
Court of Protection: Hayden J
An application was made by BP’s litigation friend, his daughter FP, and sought to achieve his discharge from the care home he was living in. BP sought a declaration that it was in his best interest to be returned to his home with an appropriate package of support. The application was effectuated as a result of the care home (‘SH’) announcing, on the 17th of March, its intention to suspend all visitation from the 20th of March onwards because of the COVID-19 outbreak. The application was made on the 23rd of March and a hearing took place on the 25th of March. The Applicant argued that the matter was urgent because the restrictions placed by the care home on BP were unlawfully interfering with his Article 5 (Right to liberty and security) and Article 8 (Right to respect for private and family life) rights.
BP had lived at SH since June 2019. At the time of this hearing, he was 83-years-old and suffered from dementia and deafness. He communicated with the aid of a communication board. This hearing was linked to an existing s.21 challenge to a DoLS authorisation. A professional had already been instructed to assess BP’s capacity but was unable to do so as a result of the restriction on visits. The DoLS had asserted that BP lacked the capacity to conduct these proceedings and to make decisions concerning his residence and care. BP was actively engaged with his family and he was frequently visited by them before the restriction was put into place.
Uncontroversially, the judge found that Articles 5 and 8 applied to the present situation. In his discussion, Hayden J explored Article 11 of the UN Convention of the Rights of Persons with Disabilities (‘CRPD’) and declared that the provision “signals the obligation on the Courts, in particular, and society more generally to hold fast to maintaining a human rights based approach to people with disabilities when seeking to regulate the impact of this unprecedented public health emergency.” The judge also quoted a statement drafted by the Council of Europe’s European Committee for the prevention of torture which called on restrictions to be “necessary, proportionate, respectful of human dignity.”
Hayden J concluded that BP’s deprivation of liberty was lawful insofar that “creative” arrangements could be made to facilitate contact with his family which offered a “balanced and proportionate way forward which respects BP’s dignity.” The judge did sanction a plan that compelled the staff at SH to train BP to use Skype to communicate with his family. His family were also authorised to see BP but only through his bedroom window which fortunately was on the ground floor. Hayden J concluded that “the outstanding assessment by Dr Babalola can be undertaken via Skype or facetime with BP being properly prepared and supported by staff and, to the extent that it is possible, by his family too.” The judge also warned that “heightened vigilance” would be needed “to ensure that BP’s fundamental rights are not eclipsed by the exigencies of the Coronavirus pandemic.”
QD (Habitual Residence) (No.2)  EWCOP 14
Court of Protection: Cobb J
This hearing concerned QD, whose matter was previously summarised here.
Since the initial hearing, a Spanish lawyer had assisted the court by advising on the process required for the Spanish courts to accept jurisdiction. A key element of this advice was that the Spanish proceedings could not progress whilst QD remained outside that jurisdiction. Further, no order had been made by the Spanish courts demanding QD to return.
Cobb J had previously heard that QD was fit to travel to Spain. However, the COVID-19 pandemic had resulted in the Foreign and Commonwealth Office advising against travel to Spain. This was particularly relevant here as QD has underlying health conditions that would make him susceptible to contracting the virus.
The Applicants (QD’s children) asked for the matter to be adjourned and accepted that QD’s prolonged stay in England would not change the answer to where he was habitually resident. The Official Solicitor (‘OS’), who was representing QD, requested that the judge order QD’s return to Spain but stay the direction pending the conclusion of the pandemic. Cobb J declined to exercise his jurisdiction to make the direction sought by the OS; he refused to on one hand approach the matter as urgent but then stay the matter for an indefinite period of time.
The judge was also not comfortable with making an ‘in principle’ decision, noting that there was no guarantee of QD being fit to travel when the pandemic does eventually subside. Instead, the judge adjourned the matter and listed it for further review in 3-4 months.
A Clinical Commissioning Group v AF & Ors  EWCOP 16
Court of Protection: Mostyn J
The court was tasked with deciding if AF had the capacity to decide if he could receive Clinically Assisted Nutrition and Hydration (‘CANH’) via a Percutaneous Endoscopic Gastrostomy tube (‘PEG’). If the answer to the first question was negative, it would then be the court’s role to decide what constituted AF’s best interests within this context. The evidence indicated that AF would likely die within a short period of time if the PEG tube was removed. AF’s GP and AF himself, acting through the OS, submitted that continuing CANH was in his best interests. His daughter SJ argued that AF’s “right to die” was in his best interests.
The court, guided by expert evidence, found that AF had a “grossly incapacitated mind” as a result of a stroke he suffered on the 5th of May 2016. AF, who is in his 70s, had begun refusing food a week after suffering from the stroke. He subsequently made several comments indicating that he wanted to die. A decision was taken on the 19th of May 2016 that AF lacked capacity and that it was in his interests to receive CANH.
SJ was concerned that her father would not have wanted to be kept alive against his will and asked the court to approve the withdrawal of CANH. Although SJ told the court that AF had held the view that it was often “cruel to keep people in a bed for so long if they can’t do anything for themselves”, AF himself had not made an advance decision to this effect before suffering from the stroke. The court was mindful of the comments AF had made after he lost capacity. Mostyn J set out that: “The court must take into account wishes expressed by an incapacitated person. This is not controversial. However, what weight the court gives to such wishes must equally take into account that they are expressed by somebody who has lost capacity.”
The judge was not inclined to accept that the statements made by AF to SJ before losing capacity could apply to the present situation. At the time of the hearing, AF was “sentient, cognitively active, emotionally aware and possessed of motor functions, albeit grossly impaired physically and mentally.” Mostyn J concluded that AF’s statements “cannot be construed as being applicable to anything more than a descent to a vegetative or minimally conscious or equivalent state.”
The judge also made it clear that there was a presumption in favour of preserving life when dealing with best interest decisions. Mostyn J then listed the evidence he had heard which demonstrated that AF’s life retained an “intrinsic quality” and one that provided him with “appreciable pleasure.” The judge reached the “very clear conclusion that it would be categorically contrary to AF’s interests for him to be set on the path that will lead to his inevitable death from starvation.” Therefore, it was in AF’s best interests for CANH to continue.
University Hospitals Bristol NHS Foundation Trust v ED  EWCOP 18
Court of Protection: Moor J
An application was made by the University Hospitals Bristol NHS Foundation Trust (‘The Trust’) in which declarations were sought for it to be lawful, if upon the deterioration of ED’s condition, not to provide CPR or any other resuscitative measure and not to admit her to the ICU unit even if she would ordinarily meet the criteria for admission. It is important to note that this application was not brought because of the impacts COVID-19 is having on the availability of hospital resources.
At the time of the application, ED was a 35-year-old woman who suffered from quadriplegic Cerebral Palsy, had learning difficulties and was unable to communicate verbally. The Trust submitted that ED could only communicate basic feelings whereas ED’s mother, FD, believed that ED could communicate to a higher degree than that. It was the Trust’s case that ED lacked the capacity to make the relevant decision whereas FD disagreed with this assessment.
ED had been treated at home for the majority of her life but she recently needed hospital and ICU care to treat pneumonia. This required variable levels of artificial ventilation and respiratory support. Although ED was, at the present moment, stable, The Trust was concerned that further deterioration may cause ED to become dependent on a ventilator or require resuscitation. They felt that this was not in her best interests. Evidence presented by The Trust sought to convince the judge that resuscitative measures would have a low prospect of success and in any case lead to a lower quality of life.
Moor J found that ED lacked capacity and that sadly her health was diminishing “episode by episode.” It would not be in her best interests to undergo further resuscitative treatment that would be “intolerable and burdensome.” Further, The Trust was not under an obligation to provide future ICU treatment in the absence of a “significant change of circumstances.” The judge made clear that he was not “authorising only palliative care going forward.” The declarations were approved “on the basis that ED will continue to get a very high level of care on the Respiratory Ward.”
FD’s counsel then submitted to the judge that the court had not addressed at all the provision found in the Mental Capacity Act 2005 (‘MCA’) relating to the “expressed view of the person or wishes and feelings but also the beliefs and values that would be likely to influence their decision if they had capacity and the other factors they would be likely to consider.” Consequently, the judge did address this issue briefly. However, it is understood that “application for permission to appeal has been made to the Court of Appeal on behalf of ED’s mother.”
SF, Re  EWCOP 15
Court of Protection: Cobb J
In this application, the Local Authority (‘LA’) was seeking declarations relating to SF’s capacity to consent to sexual relations and to have contact with AF, her husband of around 25 years (in distinction with contact with others). The LA contended that the “evidence taken as a whole displaces the presumption of SF’s capacity” to, inter alia, litigate and make decisions about her care. The OS, on behalf of SF, did not actively oppose the LA’s position in this respect.
SF is a 45-year-old married woman and suffered from “mild learning disability, type 2 diabetes, depression, and frontal lobe dementia.” She lives with her husband at her home. From time to time, SF receives “respite care at Hawthorns, a residential supported care provision.”
Both the LA and OS concluded that the evidence indicated that SF did have capacity to consent to the 2 issues being discussed at the hearing. The judge found that living at home with the benefit of respite care at Hawthorns was in SF’s best interests. She was found to have capacity to consent to sex and to have capacity to make decisions about her contact with her husband. . It is important to highlight that this declaration was made only in respect of SF and her husband, and not any other individual or group of individuals. It was agreed that SF lacked capacity to make decisions about contact with others, except where it related to her husband. The judge also approved the arrangements made by the LA that deprived SF of her liberty when she was both at home and at Hawthorns.
The Health Service Executive of Ireland v Moorgate  EWCOP 12
Court of Protection: Hayden J
The Applicant in this matter sought to recognise and enforce an order made in the Irish courts on the 4th of February 2020 relating to SM, a 19-year-old Irish girl suffering from anorexia nervosa. This would involve SM being transferred from a hospital unit in London (‘Springfield’) to one in Leeds (‘Ellern Mede’).
SM had arrived at Springfield in March 2019 following court proceedings in Ireland which mandated her treatment at the unit. At that time, she had been found to lack capacity to consent or refuse medical treatment. Unfortunately, SM’s condition deteriorated and in February 2020 it was deemed necessary to transfer her to Ellern Mede, a placement “considered appropriate because it offers a high dependency unit akin to psychiatric intensive care.”
On the 4th of February 2020, the Irish High Court made the necessary order which was the subject of review and authorisation in the present hearing. SM was represented by the General Solicitor at the February hearing and the court heard that SM still lacked the capacity to litigate. Hayden J was satisfied that all relevant parties had an opportunity to present their case to the Irish court at that hearing.
Hayden J heard that the matter was extremely urgent and that a transfer could be authorised “pursuant to the provisions of Schedule 3 to the Mental Capacity Act 2005.” The role of the court was to “consider and approve” the legal framework needed to facilitate the transfer. The judge detailed the relevant case law and statutory framework before declaring that the application would be granted.
Sunderland City Council v AS & Ors  EWCOP 13
Court of Protection: Cobb J
The LA was seeking declarations under section 15 of the MCA in respect of AS, a 44-year-old man with a diagnosis of mild learning disability, and acquired brain injury. He also suffered from bipolar and personality disorder. The declarations requested were “in relation to AS’ capacity to make a range of relevant decisions, and (subject to [the judge’s] determination on capacity) various best interests’ determinations.” The LA was also seeking authority to deprive AS of his liberty both at his supported accommodation and in the community.
Cobb J highlighted the need to presume capacity unless otherwise proven. The judge heard expert evidence that made clear that AS permanently lacked capacity. The judge further heard evidence from lay and expert witnesses that demonstrated AS’ need for around the clock care.
At the conclusion of oral evidence, all parties had reached the consensus that AS lacked capacity. The court was satisfied that AS’ incapacity extended to matters relating to his care, residence, contact and litigation. Further, it was evident that AS was deprived of his liberty in a manner “imputable” to the state. As a result, the court found that “deprivation of liberty is reasonable and proportionate” due to AS’ needs. Consequentially, the application was granted and the care plan prepared by the LA was authorised.
A Healthcare B NHS Trust v CC  EWHC 574 (Fam)
High Court of Justice (Family Division): Lieven J
This application concerned CC, a 34-year-old man with psychotic depression and mixed personality disorder. He was detained under section 3 of the MHA and had complex health issues caused by poor compliance with treatment for his diabetes. Lieven J had to decide if haemodialysis could lawfully be given to CC without his consent.
The court heard that CC would likely die within 6 weeks if he were not provided with the treatment. The judge was told that CC had a poor record in complying with the haemodialysis treatment and had previously turned off the machine whilst it was administering the treatment to him. Evidence from CC’s doctors indicated that his capacity to consent fluctuated but importantly, when capacitous, he expressed a wish to continue with the haemodialysis treatment. The application also sought to authorise the use of physical or chemical restraint on CC when administering the treatment.
Though there “was a complex interaction between CC’s mental disorder and his physical condition”, Lieven J was satisfied that CC’s refusal to consent to haemodialysis was a “clear” manifestation of his mental disorder and it could be treated under section 63 of the MHA. The urgency of the situation and the nature of the treatment allowed the judge to make the order sought under the court’s inherent jurisdiction.