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Court of Protection Newsletter #2008.10.20

Welcome to the latest 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 QC and written by Aaqib Javed.

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The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 are now in force.

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Department of Health and Social Care has updated its guidance relating to policies for visiting arrangements in care homes.

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Cases Review

DP v London Borough of Hillingdon [2020] EWCOP 45

Court of Protection: Hayden J

The issue here concerned the application of s.48 of the Mental Capacity Act 2005 in the context of s.21A challenges. DP had, in the first instance, brought s.21A proceedings to challenge a standard authorisation depriving him of his liberty in a care home since September 2019. DP’s position was that the court should terminate the authorisation on the basis that he had capacity to make his own decisions about residence and care. Despite limited evidence on capacity, the court made no order regarding the authorisation and instead made an interim declaration under s.48 MCA that DP lacked capacity as to residence. Directions were then made for further expert evidence on DP’s capacity. DP appealed.

Hearing the appeal, Hayden J clarified that within s.21A proceedings, s.48 interim declarations should not routinely be made. In cases like DP’s, the prevailing deprivation of liberty is authorised under DOLS and the court is not obliged to authorise the care plan under s.48. Orders made under s.48 are only suitable when the court is making a decision pending a final conclusion as to P’s capacity. In s.21A cases, an assessment of capacity will already be in existence for the purposes of the DoLS, and there is no need for the court to assume jurisdiction by granting a further authorisation. The court also stressed the need for a speedy determination of s.21A challenges.

Although not in issue in this case, Hayden J also warned against the court relying upon “perfunctory and very superficial” assessments when deciding if s.48 threshold had been met. The statutory threshold should not be given any additional gloss, and is to be answered by the available evidence. Further, the judge emphasised the discretionary nature of making such orders by stressing that the “section is permissive” rather than strict. The judge also made clear that if uncertain, the court should be provided with further information before deciding a s.21A application despite the tension concerning the need to make a ‘speedy’ determination due to article 5 implications.

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AB (deprivation of liberty) [2020] EWCOP 39

Court of Protection: Hedly J

The court was asked to decide if AB, who lives in supported accommodation, was being deprived of her liberty. AB is broadly allowed to do as she wants within her flat. However, her leaving from and returning to the property would inevitably be observed by a member of staff. Failure to return to the property would result in notification to the police. Staff also have unfettered access to AB’s flat although they often waited until after she left before entering to inspect and clean the property.

At the time of the hearing, AB was 36 years old and was diagnosed with Asperger’s. She had previously been detained under the Mental Health Act 1983 (‘MHA’) and had, this year, been made subject to a Guardianship Order under the MHA. An earlier hearing had confirmed that AB lacked capacity and a best interests decision was reached in respect of a care plan. This hearing dealt with whether or not a mechanism was required to keep those measures under review because they resulted in deprivation of liberty pursuant to article 5.

The court decided that these measures amounted to a deprivation of liberty as the evidence displayed AB being under “continuous supervision and control.”. The issue of control extended to the fact that she was required to return to the property irrespective of her wish to do so as well as the staff being permitted to access her private dwelling. Her compliance in returning to the flat thus far did not counteract this element of control.

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Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40

Court of Protection: Roberts J

The court heard that AB, who was 28 years old at the time of the hearing, had been suffering from anorexia nervosa since the age of 13 and had been admitted to hospital for lengthy in-patient treatment 11 times. Her current weight put her in danger of suffering from cardiac arrest and death. The treatment option available to AB was “forced nasogastric feeding”. However, this would expose “her to a very significant risk of injury given the degree of physical restraint which would be required.” The Trust sought declarations pursuant to ss.4 and s.15 of the MCA that AB was incapacitious and that it was not in her best interests to receive further treatment. The court acceded to The Trust’s application in both respects and endorsed the palliative care plan.

The Trust, AB’s family, and AB herself acknowledged the difficulties that would arise if AB underwent nasogastric feeding. The judge decided that AB’s compulsive desire against gaining weight, stemming from her diagnosis of anorexia nervosa, prevented her from “using, weighing and balancing the relevant information.” This meant that the “overriding fixation” with respect to her eating habits overpowered her ability to consent or reject treatment.

The court reinforced the principle that the subject of Court of Protection proceedings could have capacity to litigate proceedings but could also lack capacity to make the decisions that are being decided in those proceedings. Roberts J also stated that AB’s decisions were “so infected and influenced” by her beliefs that she lacked the capacity to decide on the issue of being tube fed. In any case, the very real possibility of trauma and distress being caused by AB being force-fed would not be in her best interests. Roberts J also highlighted that AB’s inability to independently make an Advance Decision about rejecting future tube feeding should not open up the possibility of another hospital or Health Trust providing this treatment to her.

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SB (capacity assessment) [2020] EWCOP 43

Court of Protection: HHJ Anderson

This decision concerned an application by the Official Solicitor (‘OS’) to discharge a previous order instructing a third independent psychiatrist to assess SB’s capacity concerning contact with other people. The court agreed to make the order applied for.

A previous hearing had heard a request from all the parties seeking a further assessment of P’s capacity relating to contact. All parties deemed the instruction of an expert to be necessary. However, the matter came back before the court as the OS believed that SB did not consent to taking part in further assessment and would find it “distressing and intrusive.” The applicant Local Authority supported the OS and felt that “it would be detrimental to SB to require her to engage in the process.”

HHJ Anderson concluded that a further assessment was unnecessary because “no party wishes the court to make any decisions about best interests in relation to SB’s contact with others” and “there is no evidence before [the court] that SB is currently at risk from third parties or is engaged in activity which will draw them to her.” In any case, there “is a real risk to SB’s emotional well-being if [the court allowed] such an assessment to proceed.”

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SF, Re [2020] 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.

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NP, Re [2020] EWCOP 44

Court of Protection: DJ Taylor

NP, a 69-year-old man, had “diagnoses of neurological sequelae of herpesviral encephalitis and personality change due to known psychological condition.” He was a resident of a neuro-rehabilitation unit since February 2019. The unit “considered that NP’s recovery had ‘plateaued’ and [he] was not going to be receiving further physiotherapy or occupational therapy.” The issue to decide was whether he should be discharged to a residential care home or his marital home with a package of care.

There was no dispute that NP lacked the capacity to conduct proceedings and to decide his residence and care needs. However, the applicant Local Authority (‘The Authority’) felt that NP’s best interests were met at the care home as his “behavioural volatility…can lead to his physical aggression on an unpredictable basis”. This, the Authority argued, could jeopardise his marriage as well as risk NP’s wife’s welfare.

The OS, on behalf of NP, asserted NP’s wife’s “willingness to provide care, supported by a care package paid by the Local Authority, means that the return home is feasible and that there is both a plan in place that prevents known risks from arising, as well as the contingency of a vacancy at the Z Care Home being kept open for three weeks.” NP also took the view that the ‘trial option’ was the least restrictive and most proportionate outcome when viewed through an article 8 lens.

The court determined that a trial period of care at NP’s marital home would be the ideal outcome as there was “not such a level of risk in the trial as to prevent the Court from considering it to be in the best interests of NP to attempt the same.”

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