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Court of Protection Newsletter #2115.12.20

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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Jump to: Reports | Guidance | Cases Review 

The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020

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The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020

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Reports

The Mental Welfare Commission for Scotland has published its annual report for 2019-20.

Guidance

The Department of Health and Social Care has updated its guidance relating to looking after people who lack mental capacity.

New guidance concerning visiting arrangements in care homes for the period of national restrictions has been published by the Department of Health and Social Care.

The Vice-President of the Court of Protection, Mr Justice Hayden, has published a letter concerning contact and the new tiered restrictions for England.

The Department of Health and Social Care (DHSC) has updated its guidance related to The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic. It can be found here.

The DHSC has further published guidance titled ‘Liberty Protection Safeguards: overview of the process’ as well as the latest edition of the Liberty Protection Safeguards newsletter.

Cases Review

Mazhar v Birmingham Community Healthcare Foundation NHS Trust & Ors (Rev 1) [2020] EWCA Civ 1377

Court of Appeal: Baker LJ

In 2016, The Appellant, Mr Mazhar, was removed from his home to hospital by police and medical staff under the inherent jurisdiction of the High Court after an out-of-hours application was made by the Respondent Trust.

Mr Mazhar suffers from Duchenne Muscular Dystrophy but there is no evidence that he was at any relevant time mentally incapacitous. Further, the Trust removed him from his home at 3 am and the family contended that they had not been informed prior to the order being made. The question the Court of Appeal was asked to answer was if Mostyn J could have made the order that was made in 2016.

It was found by the Court of Appeal that the application and subsequent order made by the High Court was a clear breach of the Appellant’s Article 6 rights “and was a flagrant denial of justice.” Baker LJ felt it unnecessary in this case to decide if the inherent jurisdiction applies to the making of an order that deprives an adult of their liberty.

The court set out seven lessons for judges and practitioners in cases where applications are made urgently and without notice. They are listed in full below:

(1) Save in exceptional circumstances and for clear reasons, orders under the inherent jurisdiction in respect of vulnerable adults should not be made without notice to the individual.

(2) A party who applies for an order under the inherent jurisdiction in respect of vulnerable adults without notice to another party must provide the court with their reasons for taking that course.

(3) Where an order under the inherent jurisdiction in respect of vulnerable adults is made without notice, that fact should be recorded in the order, together with a recital summarising the reasons.

(4) A party who seeks to invoke the inherent jurisdiction with regard to vulnerable adults must provide the court with their reasons for taking that course and identify the circumstances which it is contended empower the court to make the order.

(5) Where the court is being asked to exercise the inherent jurisdiction with regard to vulnerable adults, that fact should be recorded in the order along with a recital of the reasons for invoking jurisdiction.

(6) An order made under the inherent jurisdiction in respect of vulnerable adults should include a recital of the basis on which the court has found, or has reason to believe, the circumstances are such as to empower the court to make the order.

(7) Finally, and drawing on my own experience of these cases, if an order is made out of hours in this way, it is essential that the matter should return to court at the earliest opportunity…I would suggest, however, that it will usually be better for the order to list the matter for a fixed return date, say 2 pm on the next working day, either before the judge making the order or the urgent applications judge.

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The Health Service Executive of Ireland v IM & Anor (Rev 1) [2020] EWCOP 51

Court of Protection: Knowles J

The court was tasked with deciding if IM, a 92-year-old woman, was habitually resident in the UK or Ireland. She had moved to Ireland with her grandson, VS, although she had previously expressed emotional stress when discussing the move with her GP. The court decided that P was habitually resident in Ireland and as such, it was for the Irish courts to make decisions as to her health and welfare. Further, the court found that she had capacity to move and there was no evidence that she was coerced or otherwise forced to move by VS.

The court had heard of an account from NS, VS’s sister, who alleged that VS was financially and verbally abusive towards IM. By contrast, “his former partner, SFC, told the OPG [Office of the Public Guardian] that IM doted on VS though she did confirm that his behaviour could be unreliable, volatile, and erratic.”

The Applicant Health Service Executive submitted that “IM remained habitually resident in England. To the extent that she was capable of taking the decision to move to Ireland, this was a decision taken under the pressure and influence of VS.” Kent County Council and the Official Solicitor submitted that IM was presently a habitual resident of Ireland.

Despite the “complex” relationship IM had with NS, the judge was “unpersuaded that IM’s decision to move to Ireland was a decision taken under unreasonable pressure from VS.” The court did not invoke the inherent jurisdiction which would “constitute a subversion of the comprehensive regime available in the MCA for those who lack capacity to make decisions about welfare, property and other matters.” As such, it was for the “robust and appropriate jurisdictional framework in Ireland for taking such decisions about a person who is habitually resident there.”

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AB, Re [2002] EWCOP 47

Court of Protection: HHJ Hilder

AB’s mother, M, asked the court “to recognise Letters of Guardianship granted” in the USA “which confer authority on M to make decisions in respect of AB’s person” and “to determine a challenge to the Standard Authorisation in respect of deprivation of liberty in AB’s current living arrangements by returning AB” to M’s care.

The court found that AB remains habitually resident in the USA and heard that before M arrived in the UK with AB on a one-way ticket, the American court had been “asked to determine an application to revoke M’s authority.” An order had also been made prohibiting AB from being removed from Monroe County in New York State. After her arrival to the UK, and a protracted stay at a hospital and subsequent transfer to a care home accompanied by M, a DOLS authorisation was made in respect of AB.

The OS and the LA argued that AB was habitually resident in the USA and her long-term welfare affairs were to be determined by the American courts; thus, the Court of Protection had only limited jurisdiction in this matter. The OS stated that M’s application with respect to the letters amounted to a “failure of judicial comity” as it sought to reward M’s actions which had been taken in bad faith. HHJ Hilder dismissed the application to recognise the letters on public policy grounds. The challenge to the authorisation was also dismissed.

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A County Council v LW & Anor [2020] EWCOP 50

Court of Protection: Hayden J

LW, a 60-year-old lady with Bipolar Affective Disorder, was admitted to a specialist unit 3 years ago having been found in an “emaciated” state. An application was made in relation to LW’s capacity to decide where she should live and whether she should have contact with her partner MG.

The judge found that the relationship between LW and MG was “abusive, exploitative, coercive and wholly inimical” to her welfare. Importantly, the evidence suggested that MG’s conduct towards LW prior to her admission to the unit contributed towards her mental deterioration. MG continued to reside at AW’s property, which had now fallen into a state of disrepair. The LA was of the view that LW would “benefit very considerably from a total cessation of contact with MG”.

With respect to her capacity, Hayden J stated, “the influence that MG asserts over LW’s fragile personality that compromises her capacity to weigh and evaluate the questions relating to her care and where she should live.” The court decided that contact should be stopped. A return to AW’s property would expose her to “a regime of insidious controlling and abusive behaviour which is both corrosive of her personal autonomy and entirely irreconcilable with her best interests.” The LA assured the court that it was using its best endeavours to secure MG’s eviction from LW’s home.

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TC (Urgent Medical Treatment) [2020] EWCOP 53

Court of Protection: Cobb J

An application was made by The Trust for “personal welfare orders under the Mental Capacity Act 2005 relating to TC’s medical treatment.” The court was asked to find that TC lacks capacity and that undergoing chemoradiotherapy (‘CRT’) to treat a cancerous tumour was in her best interests. The application also carried with it a request for the court to authorise the deprivation of TC’s liberty in line with the treatment plan. TC, who is 69 years old, was represented by the OS. The LA and OS agreed that it was in TC’s interests to be treated with CRT.

The court heard evidence that, although TC had capacitously selected a course of treatment on the 7th of September 2020, “gradual decline in TC’s physical and mental health” was noted by medical professionals after the 22nd of September 2020. There was a risk that “if treatment is delayed the cancer may spread to other parts of TC’s body which would increase the risk that any treatment might not be curative.”

Cobb J agreed that TC’s chronic anxiety would prevent her from using or weighing the evidence relevant to deciding her course of medical treatment. The judge also found that “it is in TC’s best interests that she should undergo the course of CRT” in accordance with the treatment plan.

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ND (Court of Protection: Costs and Declarations) [2020] EWCOP 42

Court of Protection: Keehan J

The OS asked the court to find that the local authority (‘LA’) had failed an 18-year-old man with autism with respect to its duties under the Children Act 1989 and the Care Act 2014.

Declarations were sought from the court that the LA had failed to “provide ND with a choate pathway plan in accordance with its duties to ND as a relevant and now former relevant child under section 23 of the Children Act 1989”. As well as this, the court was asked to find that the LA failed to provide ND with “a choate care and support plan in accordance with its duties under section 25 of the Care Act 2014 (to include identification of suitable accommodation) and court order; and… failing to support ND having regard to its statutory duties under the Children Act 1989 and the Care Act 2014.”

The court, in light of the LA’s repeated failure to provide a comprehensive care and support plan, made the declarations sought. Further, P’s “behaviour and his failure consistently to engage positively with the social workers [did]…not justify or excuse the failures of the local authority referred to above.” The court also made a costs order against the LA.

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P v Griffith [2020] EWCOP 46

Court of Protection: MacDonald J

An application was made by P through her litigation friend, the Official Solicitor (‘OS’), after Ms Griffith counterfeited an order to Barts Health NHS Trust. Mr Justice MacDonald, in his role as a High Court judge, sentenced Ms Griffith to a period of 12 months imprisonment after it was found that she forged a court order and sent it to an NHS trust with the purpose of obtaining confidential medical records of a 3rd party. The judge found that Ms Griffith’s “action constituted a very serious interference with the due administration of justice” and duly sentenced her to “an immediate term of imprisonment of 12 months.”

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JB (Costs) [2020] EWCOP 49 (02 October 2020)

Court of Protection: Keehan J

An order for costs was made against the LA who had withdrawn an application for an injunction. AB, who had been living at a residential unit, was requested by the unit to leave. The LA sought an injunction to prevent this from happening but subsequently withdrew it. The unit had served notice properly in line with its contractual obligations towards AB and the LA. An order made earlier to this hearing obligated the LA to pay for the unit’s costs. This hearing dealt with an application from AB’s mother and the OS for their costs to be paid. Keehan J declared that the injunction was unmeritorious and as such the LA’s conduct was “unreasonable”. This allowed the court to depart from the no order for costs principle.

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A Local Authority v GP (Capacity – Care, Support and Education) [2020] EWCOP 56

Court of Protection: HHJ Dodd

This judgment sets out the approach taken by the Court of Protection when assessing capacity in the context of education and healthcare plans. GP is a 19-year-old man with a diagnosis of autism and learning disability. He began attending a special school in 2012 but in September 2018, RP, his father, announced his intention to remove GP from the school. GP has not attended the school since July 2018.

The Local Authority (‘The LA’) was concerned that GP required targeted support related to his education and “if GP does not avail himself of these opportunities and continues to retreat into his family home he is likely to become more withdrawn and isolated.” This hearing was listed to determine whether GP has capacity to decide whether to accept or refuse care, support, and education.

A previous hearing had established that “the presumption in respect of GP’s capacity to conduct these proceedings had been displaced.” The LA sought interim declarations that GP lacks capacity pursuant to the Care Act 2014 and the Children and Families Act 2014.

The Court agreed with the Official Solicitor’s suggestion that the correct approach to the question of interim declarations involves three steps. The Court should identify the relevant decisions within the meaning of sections 3(1) and 15(1)(a) MCA 2000; determine the relevant information in respect of each of those decisions which GP must be able to understand, retain, use or weigh in accordance with section 3(1) MCA 2000 and; determine whether there is sufficient cogent evidence to make an interim declaration that GP lacks capacity in respect of that decision.

Having heard expert evidence, HHJ Dodd proposed to make interim declarations that GP lacks capacity to:
a. Refuse an assessment of his care and support needs pursuant to the Care Act 2014
b. Make decisions as to his care and support
c. Request an EHC needs assessment under section 36(1) of the Children and Families Act 2014
d. Make decisions as to his education.
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AMDC v AG & Anor [2020] EWCOP 58

Court of Protection: Poole J

The Judge was asked to determine if AG, a 68-year-old woman residing at E Care Home (“ECH”), lacks capacity in a range of different matters including residence, care, contact with other people, engagement in sexual relations, and marriage. AG was diagnosed with frontal lobe dementia and suffered episodes of confusion, aggression, and behavioural changes that the applicant contends affect her safety in the community. AG does not accept that she needed admission to ECH.

AG began a stay at ECH on an emergency respite basis in July 2019. CI moved to ECH in or around November 2019 and subsequently formed an intimate attachment with AG. CI relayed to his social worker that he and AG had taken their relationship “to the next level” and wanted to marry and live together. In December 2019, AG’s social worker assessed AG as lacking capacity to consent to sexual relations. After that assessment, there was a record of AG and CI being found together in CI’s bed.

On the second day of the final hearing, and following the conclusion of the oral evidence of Dr Quinn, Consultant Forensic Psychiatrist, the Applicant informed the court that it did not consider that it could adduce sufficient evidence to satisfy the Court that s.15 declarations pursuant to the Mental Capacity Act 2005 (“MCA”) could be made.

Following several visits to AG earlier this year, Dr Quinn produced his final report to the parties one working day before this hearing began. His ultimate conclusion was that AG lacks capacity to make any of the decisions under consideration. However, parties were concerned at the process leading to that conclusion and the accompanying reasoning.

In an earlier report (June 2020), Dr Quinn concluded that AG did have capacity to make decisions about issuing divorce petition and marrying. He did not revisit this issue in September despite telling the Court that her condition had deteriorated when he saw her again at the end of September; “this did not sit well with his final assessment that AG lacks capacity to engage in sexual relations.” With respect to all other considerations, Dr Quinn concluded, in June, that AG had “fluctuating capacity”. By August 2020, Dr Quinn was of the view that “she is impaired probably on a continuous basis and not a fluctuating one”. Following a final visit in September, Dr Quinn communicated that he was “not now satisfied that” AG had capacity in five of the relevant considerations (although he excluded marriage from this final negative conclusion).

The Court reviewed the fact that the “evidence left the parties, the court, and even Dr Quinn himself, with some “disquiet”.” Poole J stated that “this is not a case in which the application could simply be dismissed for lack of evidence.” The learned judge then went on to comment that “the evidence as a whole established that there was reason to believe that AG lacks capacity to make the decisions under consideration and that it was in her [AG’s] best interests to make interim orders and directions” pursuant to s.48 of the MCA. After setting out a useful discussion concerning expert evidence, Poole J concluded that notwithstanding a newly instructed expert reaching the same conclusions as Dr Quinn, “it will be important that the parties and the court can see from their report that the fundamental principles of the MCA” have been followed.

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An NHS Trust v AF & Anor [2020] EWCOP 55

Court of Protection: Poole J

Mostyn J had, earlier this year, decided that AF was incapacious and it was in his best interests for him to be provided with Clinically Assisted Nutrition and Hydration (‘CANH’) via a Percutaneous Endoscopic Gastrostomy tube (‘PEG’). The case was summarised in a previous edition of this newsletter and can be read here.

The parties returned to Court in October after AF’s PEG had fallen out. Poole J was asked to declare it was lawful for AF to undergo reinsertion of the tube. SJ, AF’s daughter, argued that it was not in AF’s best interests to have the PEG re-inserted or to have CANH. She further posited “that it is not in AF’s interests to receive any active treatment…and that it is in his best interests to be placed back on an end of life pathway.”

Poole J noted that the judgment handed down by Mostyn J had not been appealed. The issue for the Court was to what extent should the present Judge’s evaluation “of AF’s best interests…be circumscribed by the findings made by Mostyn J seven months ago.” The Judge noted that “the court should give effect loyally to a previous judicial finding or decision that is relevant to the determinations it has to make, and should avoid re-opening earlier findings that cannot be undermined by subsequent changes in circumstances.”

The Court accepted that “the failure of the PEG on 9 October 2020 was a material change in circumstances that had not been expressly contemplated by the court in March 2020.” Thus the re-insertion of the PEG was a new decision for the Court to consider. Similarly, “AF’s recent hospital admission for pneumonia [w]as a change in circumstances that required a best interests evaluation.”

Notwithstanding the above remarks, Poole J was of the view that Mostyn J’s findings relating to capacity inter alia “cannot be altered by subsequent events and there is no new evidence to demonstrate they could now be challenged.” He also gave “significant weight to Mostyn J’s very firm conclusion that at the time of his judgment it was in AF’s best interests to receive continuing CANH through his PEG.”

The Court was “quite satisfied” that it was in AF’s best interests to undergo re-insertion of the PEG at such time he is medically fit to undergo the procedure.

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Livewell Southwest Community Interest Co v MD (By His Litigation Friend, the Official Solicitor) & Anor [2020] EWCOP 57

Court of Protection: Mostyn J

This hearing concerned an application for MD to have a full dental clearance (removal of all teeth). MD, a 24-year-old man, “has a number of diagnoses: learning disability, paranoid schizophrenia and ADHD.” At the time of the hearing he was voluntarily accommodated in a residential home.

MD had suffered from very poor dental health and was “unable to accept that new teeth will not grow and replace his lost adult teeth.” His rapidly deteriorating dental health was in part a result of resistance to practising normal dental hygiene, infections, and a sweet tooth. Inevitably, the current state of his dental health was causing him great physical pain.

It was not in dispute that MD lacks capacity both to conduct litigation and also to make decisions relating to his dental care. The applicant was proposing that MD should not be told of the clearance procedure beforehand and that he should be sedated and taken by ambulance to the hospital for treatment. All of the medical evidence before the Court confirmed that the procedure was “necessary”; “it is no exaggeration to state plainly that without intervention MD is at risk of infection, sepsis and death.”

Given the above, Mostyn J was “fully satisfied that the procedure would indeed be in MD’s best interests.” The Judge also declared that it was in “MD’s best interests for the procedure to be undertaken covertly and that…chemical and physical restraint” is used if required.

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A London NHS Trust v KB & Anor [2020] EWCOP 59

Court of Protection: Poole J

The court was being asked to reach a best interests decision concerning the manner of delivery of an unborn child being carried by KB.

KB is a young woman “who suffered a hypoxic brain injury at the time of her birth that has left her with microcephaly…and with moderate to severe learning disability.” She is not capable of independent living and her communication is largely non-verbal.

In July 2020, it was discovered that KB was 22 weeks pregnant; she “is wholly unable to understand that she is pregnant let alone what that will entail in terms of her need for obstetric care.”

At an earlier hearing, Mr Justice Mostyn declared that KB did not, amongst other issues, have capacity to consent to sexual intercourse. There is no suggestion that capacity was present at any earlier time.

As it was too late to consider the termination of the pregnancy, the court decided that an elective Caesarean section would be in the best interests of KB. The court was also “satisfied that the proposed deprivations of liberty, including the provision for the use of restraint, are necessary, proportionate and in her best interests” in the context of the medical procedure concerning the proposed Caesarean section. Poole J then set out a useful discussion with respect to termination, delay, and contraception in the context of this case.

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