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Court of Protection Newsletter #2210.02.21

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 | ConsultationsCases 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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Guidance

The Department of Health and Social Care (DHSC) has published guidance on the designated settings scheme for people discharged from hospital to a care home with a positive coronavirus (COVID-19) test.

Updates

The Liberty Protection Safeguards Implementation team has issued its an update on progress being towards implementation next year.

Consultations

The DHSC has opened a consultation concerning reform of the Mental Health Act.

Cases Review

JB v University Hospitals Plymouth NHS Trust [2020] EWCA Civ 1772

Court of Appeal: LJ Jackson and LJ King

An application for permission to appeal a decision of the Court of Protection to the Court of Appeal. The subject of the proceedings was RS, a middle-aged man who, in early November 2020, suffered a heart attack. His brain was deprived of oxygen for at least 45 minutes and he had been in a coma in hospital since. On the 15th of December 2020, and after the NHS Trust (‘The Trust’) began proceedings, Cohen J determined that it is in RS’s best interests not to receive life-sustaining treatment. As a result, RS was expected to die within a few weeks whilst receiving palliative care.

RS’ family disagreed with what constituted his best interests. RS’ mother and sister, who resided in his native country of Poland, were devoted Catholics. He also has a sister and niece in the UK. RS had married a divorcee in the UK 17 years ago and had children with her. RS was described as having “less contact” with his family overseas over the years and being estranged from his sister in the UK whom he had not seen for 8 years or more. RS’ wife and children supported Cohen J’s decision as did his treating doctors and the Official Solicitor (‘OS’) on behalf of RS. RS’ niece, JB, on behalf of herself, RS’s 2 sisters, and his mother, sought permission to appeal.

The medical evidence was undisputed; RB was in a coma and might be progressing towards a vegetative state. An optimistic prediction was that he may have a 10-20% chance of being able to acknowledge the presence of another human being.; “[w]ith continued ventilation and ANH his life may continue for five years or longer.”

Much of Cohen J’s focus was on whether RS had expressed any views which would inform the court as to how he would have wished to be treated in his current situation. RS’ wife said that he had previously said that he would not want to be a burden if he were seriously ill and that he would not regard ceasing treatment as removing life. KB, RS’ sister, said that he was “religiously conservative, opposed to abortion, even for an unborn child likely to be medically compromised, and was opposed to euthanasia.” KB also mentioned that RS was upset that his wife was unable to obtain an annulment of her previous marriage and therefore were unable to marry in Church. Cohen J decided that the evidence allowed him to accept that RS said to his wife that he “did not want to be kept alive if he could not be saved and that he never wanted to be a burden if seriously ill.” He was cognizant of the fact that RS’ wife knew him “better than anyone else” over the last decade.

Jackson LJ set out the test for permission to appeal to be granted; namely that it must have “a real prospect of success or there must be a compelling reason for it to be heard.” JB’s core submission to the Court of Appeal was “that the decision was unjust because of serious procedural error in that it was taken with an insufficient degree of inquiry into how RS would have wanted to be treated against the backdrop of the tenets of his Catholic faith.” The Court of Appeal highlighted that “[t]he pace of proceedings of this kind must be suited to the needs of the individual case. Inquiries must never be rushed but they should only be prolonged if they would provide useful information.” An additional matter concerning JB’s original counsel not cross-examining RS’ wife was raised in the current hearing. The Court of Appeal reminded the parties that there is “no absolute right to cross-examine and in a case of this kind adversarial cross-examination of family members acting in good faith is likely to be of very little value.”

A further issue raised was the fact that RS’ wife had provided Cohen J with a letter concerning RS’ personal life and observation of Catholicism. Jackson LJ found that this did not amount to a serious procedural error; the contents of the letter detailed that “RS had made choices in his personal life that were not in complete harmony with his religious obligations. That much was clear from the known history and it cannot plausibly be said to have played any part in the decision in this case.”

The Court of Appeal concluded that it had not heard an arguable case that the Judge’s decision was wrong or unjust. Permission to Appeal was refused.

Read judgment here

Z v University Hospitals Plymouth NHS Trust & Ors [2020] EWCOP 69

Court of Protection: Cohen J

This is a hearing concerning RS who is the subject of proceedings as detailed in the above summary. Cohen J had granted declarations that The Trust could lawfully discontinue life sustaining treatment as it was not in RS’ best interests. Following this initial decision on the 16th of December 2020 nutrition was withdrawn before being reinstated on the 18th of the same month upon the filing of an application to the Court of Appeal. On the 23rd of December 2020, the Court of Appeal refused the application. Nutrition was withdrawn on the 24th of December 2020 but resumed once again on the 28th of December.

On the 24th of December, JB applied to the European Court of Human Rights (‘ECtHR’) for interim relief. The Government of Poland had also sought interim relief in the same terms. Both applications were refused by the ECtHR on the 24th and 28th of December. JB made a substantive application to the ECtHR on the 28th of December.

An urgent hearing came before Holman J on the 27th of December where the order concerning life sustaining treatment made by Cohen J was stayed until a further hearing took place before the initial judge on the 31st of December. JB subsequently issued an application seeking 3 specific orders:

i) An order that she be allowed to rely on the report and call in evidence Dr Pullicino;

ii) A declaration that it is lawful and in the best interests of RS to receive CANH;

iii) A declaration that it is lawful and in his best interests for him to be transferred to Poland for further treatment.

This application was opposed by The Trust, RS’s wife, and OS on behalf of RS.

The main issue before Cohen J was whether the court’s reliance on the medical evidence heard at the initial hearing “was either misplaced or needs to be reconsidered in the light of the events since that time.” JB had arranged for Dr Pullicino, “an experienced neurologist as well as an ordained priest”, to prepare a report and give evidence at this hearing. The Judge summarised Dr Pullicino’s evidence as being “unaccountably vague.” Cohen J was also concerned that a visit to the hospital by RS’ niece and her family, ostensibly to say goodbye, was in fact used to gather video evidence which was provided to Dr Pullicino.

The 10 video clips, which were seen by the Judge, total about 3 minutes in all and were “filmed under the instruction of Dr Pullicino who told the family how they should approach RS and what they should do to try and attract a response from him.” Dr Pullicino wrote a letter which was put before Holman J stating that RS shows “a clear emotional response to the presence of the family members.”

Cohen J was critical of how the video recordings had been obtained. He highlighted the deficiencies in the “unqualified nature of his report” and “unclear” oral evidence. The Judge was inclined to not place “any weight on the evidence of Dr Pullicino”. This notwithstanding, the question remained: Had “there been a change in RS’s condition which makes it unsafe to rely on what [Cohen J] had previously found?” Dr Bell, an independent expert, conducted a video assessment on the 29th of December, and observed that RS demonstrated “more frequent and sustained spontaneous eye opening than on 5 December when previously he had remotely examined RS.” Despite this, the overall medical picture was that “things have got worse for RS, not better.” Cohen J was “left in no doubt that there has been no improvement in RS” and “it is not in his best interests for life sustaining treatment to be given.”

JB had also made an application for a transfer of RS to Poland. The Judge rejected this suggestion as it would not be in RS’ best interests. The Judge also stated that the ECtHR “has not yet decided whether to accept the reference but has refused applications for interim measures to order implementation of life saving treatment and/or transfer of RS to his birth country and/or further medical examination.” It was unsatisfactory that RS’ nutrition had been stopped and restarted on 2 occasions so far. However, Cohen J continued the stay of the implementation of the order made on the 15th of December 2020 for the purposes of the ECtHR being persuaded to make a different order to that made so far. The stay was continued until 4 pm on the 7th of January 2021.

Read judgment here

Davies v Wigan Council & Anor [2020] EWCOP 60

Court of Protection: Hayden J

This case dealt with a challenge, pursuant to s.21A of the Mental Capacity Act 2005 (‘MCA’), to the standard authorisation which was put in place for Mrs Davies (‘MD’) at BL Lodge. The authorisation had been in place since the 29th of January 2020. MD’s husband Dr Davies (‘JD’) and their son Mr Davies (‘KD’) provided statements to the court in support of the application.

MD is 58 years old and enjoyed a “full and happy life” with her husband and family. However, in late 2018 she suffered from a significant subarachnoid haemorrhage, secondary to an aneurysm in her brain and a stroke. This resulted in significant brain damage. She currently requires supervision when feeding herself and all manual handling of her is undertaken by 2 staff. She was visited daily by JD when she was hospitalised for 11 months following the subarachnoid haemorrhage. After this period MD moved to a specialist brain injury neurorehabilitation unit, the BL Lodge. MD continued to have daily contact with her family during this period.

The onset of the Covid-19 pandemic meant that the only means of communication between MD and JD from the 17th of March to the 6th of July was via smartphone around 3-4 times a week. Despite a relaxation of rules in July, which allowed for socially distanced visits, contact soon reverted to video calls after the reproduction of the virus increased in Greater Manchester, where BL Lodge is located. The court noted that although MD contracted the Covid-19 virus, she responded well to it.

Earlier, and separate to these proceedings, Hayden J, in response to the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 (SI 2020/1105) (‘the regulations’), published an open letter that made it clear that “[the regulations] permits contact with relatives ‘staying’ in Care homes, under the same arrangements presently assessed as Covid-19 compliant.”

This application was made by JD on the 5th of November. On the 16th of the same month, MD was moved to a new care home and was able to have window contact with her friends and family twice a week. The new arrangements produced further distress when much of the care needed to ensure MD’s safety appeared to be missing.

Hayden J noted that in the context of the pandemic, those living in care homes faced deprivation of contact with loved ones that could corrode their quality of life. Counsel in the case emphasised that “those in care homes should not be regarded as an homogenous group with identical needs.” He emphasised that MD’s needs “must be regarded as unique to her [and]… scope of contact must be evaluated on an individual and not a generic basis.” Hayden J asked the care home to be contacted to see if, in the interim, and before the case can next come before the court, window contact can be maintained daily.

Read judgment here

CVF, Re [2020] EWCOP 65

Court of Protection: Lieven J

CVF is a 29-year-old woman with a diagnose of diabetes, learning disability, emotionally unstable personality disorder, low self-esteem, and feelings of abandonment. CVF’s mother, JF, made a personal welfare application in January 2018 citing concerns over the former’s ability to “consent to sex, to make decisions in respect of contact with unknown men and to make decisions in respect of her care.” Shortly thereafter, the Local Authority (‘LA’) was substituted as the applicant.

In July 2019, Lieven J made final declarations under s.15 of the MCA that CVF lacks capacity to (i) conduct these proceedings, and to make decisions regarding (ii) her residence; (iii) her care and support needs; (iv) the contact she has with others; (v) her internet and social media use and (vi) her property and financial affairs. The judge declared that CVF has capacity to (i) consent to sexual relationships and (ii) make decisions regarding her medication. CVF was deprived of her liberty and a care and support plan was authorised.

At the previous hearing in December 2019, it was agreed that CVF should continue to live in her flat on a long-term basis, there was no need for an order regarding contact between CVF and JF, and the restrictions on CVF’s use of the internet and social media use were in her best interests. This hearing dealt with (i) the amount of care and support needed by CVF; (ii) whether the Local Authority should substitute JF as CVF’s deputy for property and affairs and (iii) JF’s application to be appointed as CVF’s personal welfare deputy.

The judge noted that since the July order was made, CVF had been living in her own flat and is no longer receiving 24/7 level. There had been a “great improvement in CVF’s psychological and emotional wellbeing over the last few months.” JF’s position was that CVF was repeating a pattern of behaviour that seeks a relationship which allows her to be exploited. JF felt that CVF needs 24/7 care and that she should remain in control of CVF’s finances as her property and affairs deputy and also be appointed as CVF’s welfare deputy. JF also expressed concern that the Local Authority has been too quick to support JF’s personal relationships without sufficient protective measures in place.

Lieven J found that CVF does not need 24/7 care and instead seeks more autonomy. In her assessment, Lieven J concluded that “JF is both a protective factor for CVF…but also has not managed to allow CVF to gain greater independence and autonomy.” The judge made the order sought by the Local Authority.

Lieven J saw no disadvantage to the Local Authority becoming the property and affairs deputy and made the order sought by the LA. The judge also decided that “it is not in CVF’s best interests for her mother to be appointed as her personal welfare deputy.”

Read judgment here

AA (Court of Protection: Capacity To Consent To Sexual Practices) [2020] EWCOP 66

Court of Protection: Keehan J

The court was concerned with AA, a 19-year-old man with diagnoses of autism and Asperger’s Syndrome, and his capacity to conduct proceedings and make decisions regarding autoerotic asphyxiation (‘AEA’), internet and social media, consent to sexual relations and contact with others. Keehan J was also being asked to determine AA’s best interests in those domains where he lacks capacity to decide and whether AA’s liberty should be deprived.

AA had been accommodated by the local authority under a s.20 Children Act 1989 agreement in November 2017 and then a care order which was made in November 2018. In August 2020, AA moved to his new property where he has support 24 hours per day, seven days per week. AA engages in or has an interest in various sexual practices including AEA, abduction and rape. Concerns were raised from both AA’s family and the applicant local authority that these practices carried a high risk of unintentional death and AA “could not only be a victim of sexual abuse and assault but also become a perpetrator.” Further, AA “advertised online his desire to be a submissive partner, be kidnapped and raped.”

A psychologist, Dr Hutchinson, had, in the 2018 public law proceedings given an opinion on AA’s capacity to make decisions in various domains; he concluded that AA lacked capacity to conduct these proceedings and to make decisions about his residence and care. During these proceedings, Dr Burchess, a psychologist, “was instructed to advise on AA’s capacity to conduct these proceedings and to make decisions about his residence, care and support, contact with others and access to the internet and social media.” In his report, dated the 23rd of July 2020, he concluded that: i) AA does not have a learning disability; ii) he does have autistic spectrum disorder, Asperger’s syndrome and paraphilic disorder; iii) AA does have capacity to conduct these proceedings; iv) he does have capacity to make decisions as to his residence, care, contact with others, the use of the internet and social media and to engage in sexual relations; and v) AEA should be considered as a specific decision and a domain separate from engagement in sexual relations.

At an earlier hearing, the judge “found there was reason to believe that AA lacked capacity to conduct these proceedings” and Dr Burchess was directed to provide an addendum report. In that addendum, Dr Burchess observed that: i) AA underestimates the extent and range of support he will require in relation to his care arrangements; ii) despite his knowledge of the potential dangers of internet use, AA continues to expose himself to a high risk of harm; and iii) he does not fully appreciate the dangerousness of engaging in AEA.

It was agreed by the parties that Dr Ince, a psychiatrist, should be instructed to report on AA’s capacity to make decisions regarding AEA and to make decisions about the use of the internet and social media in the context of his contact with others whom he meets online. Dr Ince concluded that AA lacked the capacity to make decisions regarding AEA as he “fails to understand and weigh the information relationship to the decision.” Dr Ince also considered that AA “lacks capacity to have contact with others online, at least, in respect of his sexual interests.”

Counsel for the LA “invited the court to accept the evidence of Dr Ince and to make declarations that AA lacked capacity to make decisions about engaging in AEA and to make decisions about his use of the internet and social media” and to authorise the current package of restrictions on AA which amount to a deprivation of liberty. The Official Solicitor submitted that AA had capacity to make decisions in respect of: i) his residence; ii) his care and support arrangements; iii) his contact with others; and iv) to consent to sexual relations. The LA agreed with these submissions.

Keehan J concluded that “AA’s engagement with AEA is a manifestation of his ASD (the diagnostic test) and that he is unable to weigh information about this practice or cross-transfer information because of his ASD (the functional test).” The judge further added that “AA is at high risk of being unable to regulate his engagement with AEA and therefore at greater risk of serious harm or death” and he “does not have capacity in relation to contact with those people he meets online because of his ASD and because of his inability to weigh information and to cross-transfer information.” The respective declarations were made on an interim (s.48 MCA) basis instead of a final (s.15 MCA) basis.

The court found that “AA needs to be provided with an education program to enable him to understand alternative means of obtaining sexual gratification other than by engaging in AEA and enable him to contact others online safely and securely or, at least, to be able to weigh and understand the risks at which he places himself by this activity.”

Read judgment here

KK v Leeds City Council [2020] EWCOP 64

Court of Protection: Cobb J

DK is a 19-year-old woman with global learning disabilities, an autistic spectrum disorder, and associated profound needs. She had been found to lack litigation capacity and is represented by the OS. The LA, Leeds City Council (LCC), sought declarations relating to DK’s capacity to make decisions about her residence, contact with others, and use of social media. Her maternal aunt and former main carer, KK, wished to be joined to the proceedings and had made an application for party status. That application had been refused by HHJ Hayes QC. An appeal was heard by Cobb J.

At the hearing before HHJ Hayes QC, the LA and OS “sought to rely upon, information which, although acknowledged to be relevant to the issue before the court, they wished to keep confidential from KK.” The judge received this information in document form and read it whilst KK and her lawyers were not given access to this material. Cobb J also read this confidential material along with the supplementary judgment prepared by the Judge at first instance.

HHJ Hayes QC had, in his judgment, stressed that the rules do “not give rise to an “entitlement” or “right” to be joined or any “presumption” that joinder should happen.” He reflected the argument of the LA and OS that if joining KK would be contrary to the “interests and position” of DK, then the application must be refused. He was further satisfied that “the necessity for redaction [of the confidential material] is rooted in DK’s best interests” and that “DK is likely to disengage…with professionals” if KK was made aware of the content in the material. The Judge concluded that it was not “desirable” to join KK to the proceedings.

Cobb J confirmed that the Judge at first instance had correctly identified and applied the relevant test concerning the joinder of parties. The real dispute in this appeal focused on the confidential material and its impact on the decision. Cobb J stressed that “KK had no absolute right to access…the confidential material.” He then set out a useful list of points to be considered in a matter of this nature. The appeal was dismissed; notwithstanding this, Cobb J reminded the LA that his decision does not detract from their obligation to consult with KK as practicable and appropriate on welfare-based issues concerning DK pursuant to s.4(7) of the MCA.

Read judgment here

County Council v KK & Ors (Rev 1) [2020] EWCOP 68

Court of Protection: Lieven J

In January, following a series of diabetic seizures, an order was made authorising the deprivation of liberty of JK, who was 17 years of age at the time. The Judge was asked to decide if the order should now come to an end. JK was assessed to be sectioned under the Mental Health Act 1983 and was found not to meet the statutory criteria. JK had been residing at KC Hospital between the 5th of February 2020 and the 5th of October 2020.

In April, Dr Adesida, a consultant psychiatrist, “concluded that JK lacked capacity to make decisions concerning her treatment and care and that she should be admitted to a residential unit which would meet her medical, mental health and social needs”. In October 2020, a decision was made that JK should be discharged to a supported placement run by AV. JK is the only person living there but has the benefit of 24/7 care and support. JK turned 18 in August 2020 and began a university course in September 2020. Dr Adesida filed an addendum capacity assessment and concluded that: “a) JK has capacity to make decisions about the care and treatment of her diabetes, except when she is under considerable distress and has overwhelming emotions; (b) during those times JK is unable to weigh information about the management of her diabetes condition and during those periods she lacks capacity to manage her diabetes; (c) developing skills to cope with her extreme emotion will help JK to develop her capacity. In particular, Dialectic Behavioural Therapy would be beneficial.”

The LA position was for the Deprivation of Liberty authorisation to continue in a limited form. The LA accepted “that JK has capacity to decide where she lives and therefore limb (a) is no longer appropriate; and they accept that (d) allows forced medication and is not itself a deprivation of liberty. The effective part of the order [as made on the 29th of October 2020] that they now seek is parts (b) and (c) allowing the LA (or in practice the staff at AV acting as their agents) to prevent JK leaving the premises and to transport her to hospital.” JK wished for the Deprivation of Liberty authorisation to end with a view of returning to her parent’s home over the Christmas period.

Lieven J accepted Dr Adesida’s evidence concerning JK’s ability to weigh up information about her diabetes and that she may “prospectively” lose capacity. The second issue for the Judge to consider was if the regime proposed by the LA amounted to a deprivation of liberty. Lieven J was “far from convinced that the restrictions that the LA is now seeking over JK do amount to a deprivation of liberty.” The only restriction is for periods when JK becomes ill and loses capacity, “the LA can restrain her for medication and take her to hospital.” The Judge concluded that “the appropriate course is for me [Lieven J] to assume that there would be such a deprivation, even if in reality the restraints placed upon JK (if they happen) would be either too fleeting or too consensual” to amount to a deprivation of liberty.

The Judge then highlighted that any order made must be made in JK’s best interests as well as with regard to “whether the purpose can be achieved in a way that is less restrictive of JK’s rights and freedoms of action.” JK was able to articulate her wishes and feelings when she did have capacity. Amongst her concerns were that she would be unable to pursue a career as a Police Officer if an order authorising a Deprivation of Liberty was made. As such, the order would continue to have a “highly detrimental impact on her life.” After assessing the evidence, the Judge decided that JK “has reached a stage where she needs to be trusted to make decisions”. Given JK’s willingness to seek medical treatment, Lieven J was “not convinced that the order serves a useful purpose” and would be counterproductive as it “undermines JK’s desire and motivation to achieve autonomy.” As such, the order permitting the Deprivation of Liberty was discharged.

Read judgment here

NG (By His Litigation Friend, the Official Solicitor) v Hertfordshire County Council & Ors [2021] EWCOP 2

Court of Protection: Lieven J

The Official Solicitor (‘OS’) appealed a ruling which favoured the health and welfare deputy’s decision that NG’s mother and stepfather (collectively ‘the parents’) did not have a reasonable excuse to leave their home in order to provide care to him as per section 6(2)(d) of the Coronavirus Regulations.

NG is a 30 year old man with “moderate to severe autism with some mild learning difficulty.” NG was being looked after by carers in his own flat on a 24/7 basis under a care package but had contact with his parents until it was stopped when ‘lockdown’ was put in place in March 2020. NG’s deputy put a stop to the contact because of concerns around the risks to the health of NG and his carers. At first instance, the Judge agreed that because “essential care” wasn’t being provided by the parents, direct contact could be stopped.

The OS submitted three grounds of challenge- “that the Judge was wrong in finding that NG was not in receipt of a shared care package; that the Judge erred in law in his interpretation of regulation 6(2)(d); and that the Judge asked himself the wrong question, namely whether the welfare deputy, HG, had a reasonable interpretation of the regulation.”

The appeal was allowed on the first two grounds. Lieven J concluded that the parents were providing care to NG when they were spending time with him; having (pre-lockdown) contact of 3 days a week as his sole carers meant that they were providing care. Secondly, the regulations do not require the care to be “essential”; “[t]he wording of regulation 6(2)(d) is broad and unspecific in respect to the nature of the care. It would therefore be wrong to create a criminal offence for someone providing care in the circumstances” of the parents.

More broadly, Lieven J stated that the “fact that a person is delivering care pursuant to a court order to a family member must in my view amount to a reasonable excuse to leave the home.” The learned judge also emphasised that NG’s “wider emotional and psychological need is to see and be cared for by his parents.”

Read judgment here

E (Vaccine) [2021] EWCOP 7

Court of Protection: Hayden J

Mrs E, an 80-year-old woman diagnosed with dementia and schizophrenia, and living in a care home, was deemed to lack capacity to consent to receiving a vaccination to protect against Covid-19. Hayden J considered that “when she had capacity, Mrs E chose to be vaccinated in line with public health advice.” Her son, W, is “deeply sceptical about the efficacy of the vaccine, the speed at which it was authorised, whether it has been adequately tested on the cohort to which his mother belongs, and, importantly, whether his mother’s true wishes and feelings have been canvassed.” Mrs E’s representatives sought a declaration pursuant to section 15 of the MCA that it would be lawful and in Mrs E’s best interests to receive the vaccine at the next possible date.

Hayden J was particularly cognizant of the risks associated with Covid-19 should a person with Mrs E’s characteristics contract the virus: “[b]y virtue of her vulnerabilities, the prospects for her if she contracts the virus are not propitious; it is a risk of death, and it is required to be confronted as such.” The Judge had no hesitation in concluding that receiving the vaccine was in Mrs E’s best interests and considered that she should receive the vaccine as soon as practically possible.

Read judgment here

TA, Re (Recording of hearings; Communication with Court office) [2021] EWCOP 3

Court of Protection: Cobb J

Dr Barbara Green represented the Local Authority in this case.

The Court of Protection was concerned with the welfare of GA, an elderly woman with Alzheimer’s dementia. Cobb J was asked to determine 2 issues: an application by TA (GA’s son) for permission to make his own recording of this hearing and indeed all hearings in this case in the Court of Protection; and an application for an order restricting TA’s contact with the Court of Protection Court office, given his history of communications with the court over a period of time.

Dealing with the first issue, the Judge reiterated that TA could “apply to the court for a transcript of the same at his own expense” and that there was no reason to depart from the usual procedure which prohibited recordings of this or any other hearing.

Turning to the second issue, Cobb J heard that “TA has been engaged in litigation concerning GA for approximately two years. In that time, it appears that he has corresponded at length and in trenchant terms with both the Official Solicitor and the Local Authority.” This in turn had led to those two parties establishing protocols that regulated the volume and tone of the communications from TA to them. TA had also corresponded excessively with the Court of Protection office in Leeds; sending 130 pieces of correspondence in recent months and making 39 COP9 applications in the case over the 24-month period. Cobb J found that TA’s correspondence with the court office had been “wholly disproportionate”. The Judge made an injunction that had the effect of restraining TA hereafter from communicating with the court office by e-mail and telephone. Nonetheless, TA was permitted to correspond with the court office through Royal Mail should he have the need to do so.

Read judgment here

University Hospitals of Derby and Burton NHS Foundation Trust & Anor v MN (medical treatment : Mental Capacity Act 2005) [2021] EWCOP 4

Court of Protection: Hayden J

This matter concerned MN, a 60-year-old man who has been diagnosed with paranoid schizophrenia and who lives in a mental health recovery home. MN was suffering from  an obstruction in his right kidney which is suspected to be related to bladder cancer. The Applicant Trust (‘The Trust’) made an urgent application in order to: (a) examine MN by means of a CT scan with contrast; and (b) if clinically appropriate, to treat MN using a cystoscopy procedure known as transurethral resection of bladder tumour (‘TURBT’), which removes tumours using a telescope inserted into the urethra; and (c) for both procedures to be performed under a single dose of general anaesthetic, which is likely to require MN’s hospital admission overnight.

MN has not agreed to pursue treatment since November 2020. MN’s treating urologist was of the opinion that MN’s symptoms strongly indicate that he has bladder cancer, but absent a CT scan, this is not confirmed. The treatment would likely require a degree of restraint which would amount to a deprivation of MN’s liberty. Dr T, a consultant psychiatrist had concluded that MN “appears not [to] have ability to grasp information being imparted to him regarding the serious nature of his medical issues.”

Hayden J concluded “that  it  would  be  inconsistent  with  the  principles  of  the MCA 2005  for  the  Court  pre-emptively to authorise the deprivation of MN’s liberty  in circumstances  where  both  the  nature  of  the  potential  emergency  situation  could  be anticipated  (the  foreseeable  impact  of  blood  clotting  related  to  bladder  cancer),  and where MN’s wishes and feelings might be sought and recorded in advance.”

The judge concluded that the interim order sought by the applicants is only operative (pending the final hearing) if all of the following conditions are met:

i. MN is in pain and/or discomfort and/or is unable to urinate;

ii. MN’s views have been canvassed regarding having emergency treatment (it having been explained to him that such treatment would release him from pain and/or discomfort and/or would enable him to urinate);

iii. The emergency treatment would include releasing any blood clots in his bladder (or other clinically indicated and operable obstruction) preventing him from urinating;

iv. MN continues to express a resistance to emergency treatment.

Read judgment here

A v AG and CI (No. 2) (Rev 1) [2021] EWCOP 5

Court of Protection: Poole J

A previous case summary concerning an earlier hearing in this matter can be found here.

The court was asked to decide: if AG had capacity to conduct litigation, where she was to live, and make decisions concerning her care and support. In sharp focus was AG’s ability to consent to sexual activity. A jointly-instructed expert concluded that AG lacks capacity to make decisions as to the conduct of litigation, her place of residence, her care and support, management of her property and affairs including termination of the tenancy on the property in which she lived before she moved to the care home, and marriage and divorce and AG has capacity to make decisions as to engagement in sexual relations and contact with others.

The Judge reminded parties that the “court is not bound to accept the opinion evidence of Dr Mynors-Wallis [the expert] on AG’s capacity.” Nonetheless, in this case, Poole J did accept the opinion of the expert. The Judge found that AG “has no ability to process information relevant to more complex decision making such as would be involved in deciding where to live, the conduct of litigation, ways of providing the care she needs, or the advantages and disadvantages of different ways of managing her property or affairs.” Despite this, AG did have capacity to decide whether to engage in sexual relations; AG “demonstrated a basic understanding of the nature and mechanics of sexual intercourse, and of consent.”

Importantly, Poole J praised the report of Dr Mynors-Wallis as being “clearly set out” and demonstrating “throughout that he has assessed AG’s capacity in relation to each decision separately, referring to the relevant information, and applying the tests within s. 3 of the MCA 2005, but he has also considered the coherence of his conclusions on capacity, having regard to the links between the different decisions in AG’s case. He has considered separately the diagnostic and the functional tests of capacity, and the question of causation. He has quoted questions and answers from his interview with AG but has not annexed a full transcript.” This was especially important following the difficulties with the evidence of the earlier expert.

Read judgment here

AEL, Re (Mental Capacity Act 2005) [2021] EWCOP 9

Court of Protection: Hilder J

AEL is a 31 year old woman with a rare chromosomal condition leading to a number of physical and mental disabilities who lives with her parents. The issue before the Court was whether or not the arrangements for AEL’s care amount to a deprivation of her liberty. The court heard AEL “has severe learning disability, significant visual impairment and profound deafness. She suffers from asthma, eczema and severe allergies. She is non-verbal and can only walk short distances. She does not have a regular sleep pattern. At times, she may behave in a way which causes herself injury.”  Since 2016 a care package has been funded by direct payments.

During an earlier hearing in 2017, the court declared, that “in so far as” AEL’s care arrangements amounted to a deprivation of her liberty, such was authorised by the court, with consequential provisions for review. JSL, AEL’s father, considered his daughter’s care arrangements amounting to a deprivation of her liberty as “palpably nonsense”. The Applicant Local Authority considered that determination of whether or not there is deprivation of liberty in AEL’s living arrangements is required – without it, “this matter will continue to return to court in a manner which involves disproportionate use of public funds and does not serve AEL’s best interests.” Its position, along with the Official Solicitor’s, was that AEL was under constant supervision.

Hilder J stressed that “[t]here is limited usefulness in comparing facts of reported cases, since whether or not a deprivation of liberty exists is to be determined on the facts of each specific case and not by analogy.” Concluding, the Judge noted that “[t]he law is now settled, and the facts of AEL’s care arrangements are not in dispute. Viewed objectively, the key aspects of AEL’s experience are that:

a) she requires, and is given, 24-hour care and supervision – she is never “left to her own devices” but is accompanied by carers at all times; and

b) although she is regularly given the opportunity to make choices, and carers generally strive to facilitate realisation of her choices, there is an acknowledged limit to AEL’s ability to do what she wants – ultimately, all the activities she undertakes are risk assessed by AEL’s parents and/or carers […] and “the principle” of such assessment is that they may decide not to allow her to do anything which they consider could compromise her safety.

Therefore, these two aspects of AEL’s living arrangements clearly amount to “continuous supervision and control.” Hilder J was “in no doubt that AEL’s current care arrangements amount to a deprivation of her liberty.” AEL will “have benefit of a periodic, independent check that arrangements continue to be in her best interests. Such requirement is not to stigmatise her or her loving family, but quite the opposite – to ensure recognition of her equal dignity and status as a human being.”

Read judgment here

Pennine Acute Hospitals NHS Trust v TM [2021] EWCOP 8

Court of Protection: Hayden J

The applicant Trust sought to perform a bilateral below-knee amputation upon TM, without which, his treating clinicians believed he will develop sepsis and suffer life-threatening renal and cardiac failure. TM strongly objected to the proposed surgery and treatment, and believed that his condition would improve without it.

TM, a man thought to be 42 years old, was found collapsed at a bus shelter in Manchester on the 30th of December 2020. He is believed to have been street homeless and was diagnosed with acute limb ischaemia. A vascular surgeon had reviewed TM and concluded that “a below-the-knee, bilateral amputation (in respect of both legs) was the only appropriate surgical option.” TM immediately declined this treatment. A HIV test had been carried out on TM and the result was positive. The high T-cell count indicated “that he had not been taking any HIV medication for some time.” On the 3rd of January 2021, and after a period of treatment concerning other medical issues, a Dr Devine assessed TM as lacking capacity. Notwithstanding TM’s reluctance to allow surgical treatment, there was “a great deal of medical treatment with which TM has been compliant [HIV medication and receiving intravenous fluids], and he has received supportive therapy for renal failure.”

TM had lost touch with his family (including a daughter) and as such no family members, friends, or relatives had been identified. The Judge took the opportunity to visit TM in hospital remotely. Hayden J was left with the impression that TM was a man who was “interested in and engaged with life. In short, a man who wanted to live.” The Judge also stated what often goes overlooked: namely that a rejection of treatment does not equate to wanting to die.

Hayden J emphasised that “[i]t is a misunderstanding of section 3 MCA 2005 to read it as requiring the identification of a precise causal link when there are various, entirely viable causes.” In this case, there was an impairment of mind or brain that has rebutted the presumption of capacity.  The Judge concluded that it was in TM’s best interests to receive surgical treatment: “TM’s instinctive enthusiasm for the natural world, his pride in and love for his daughter, and his spontaneous expression of his wish to see her indicate to me a man who would choose to live.”

Read judgment here

UR, Re [2021] EWCOP 10

Court of Protection: Hayden J

A challenge to the standard authorisation granted by the Local Authority pursuant to section 21A of the MCA 2005 as regards the best interests qualifying requirement was made in respect of UR, a 68 year old Polish woman, who had been living in England for some 50 years. UR had, for the past 9 months, expressed a wish to return to Poland where her family resided. The real issue in the case was if it was possible and in UR’s best interests to achieve her goal of being repatriated.

The Judge heard that UR had family in Poland that was willing to care for her and that UR had the financial means to fund her own package of care should that be required. A document had been provided to the court that “provided a clear and helpful report outlining the challenges and likely impact upon UR of a move to Poland.” It concluded that it would be unlikely for any mental or physical harm to occur during the course of UR’s move to Poland. A Polish lawyer, Mr Kurek, had “set out how the transition to Poland can be made and the appropriate applications that would have to be pursued and considered.” An independent social worker reported to the court that UR’s family was fully aware of the challenges her care can involve, and understood the practical matters that they have to pursue in order to care for her.

The OS, representing UR, had undertaken a “’balance sheet analysis’ of the competing factors.” UR had been clear and consistent in her wish to return to Poland and her belief and values strongly suggested that returning to Poland would be of “significant” importance to her. There would also be a strong family network in Poland willing to care for UR. “Other relevant matters” were listed which included the fact that because UR resided with “older residents suffering from dementia…her ability to socialise, develop friendships, and engage in group activities” was limited.

The court was made aware of the challenges concerning a proposed move to Poland, namely that “UR will not be entitled to section 117 MHA 1983 aftercare provision, and her disability benefit/ entitlement to healthcare provision in Poland will not be determined until her arrival and subsequent assessment by relevant services. It is likely (for the immediate future) that UR will need to pay for her own care.” Hayden J concluded that “it is possible and in UR’s best interests to move to live in Poland.” This did not detract from the importance of the practical arrangements concerning UR’s care being addressed.

The judge also concluded that the Coronavirus Regulations in force at the time of the hearing allowed for such a move to go ahead; the Regulations would similarly not prevent UR’s carers to accompany her on the journey. The Judge also endorsed the following, non-exhaustive, checklist submitted by counsel which is likely to provide useful guidance when preparing cases concerning P’s proposed permanent relocation away from the jurisdiction of England and Wales:

i. Liaison with the relevant Embassy/ Consulate (in the first instance) to ascertain what guidance and assistance can be provided;

ii. Evidence as to physical health to travel (GP);

iii. Evidence as to mental health to travel (psychiatrist);

iv. Legal opinion regarding citizenship, benefit entitlement, health and social care provision in the relevant country, and such other issues relevant to the case;

v. Consideration of any applications that need to be made as a consequence of any legal opinion provided;

vi. Independent social work evidence regarding the viability of the proposed package of care in the relevant country if such evidence cannot be provided by the parties to the proceedings or a direction under section 49 MCA;

vii. Confirmation of travel costings from the commissioners of the care package, both in relation to P and any carers that may need to travel with them (who will pay?);

viii. Confirmation that the necessary medication/ care will be available during travel from the UK/ for the immediate future in the new country

ix. Transition plan/ care plan, to include a contingency plan and how the matter should return to court in the event of an emergency in implementing the proposed plan;

x. Best interest evidence from the relevant commissioners;

xi. Wishes and feelings evidence;

xii. Residual orders to allow the plan to be implemented, including single issue financial orders regarding opening/closing of UK bank accounts, the purchasing of essential items to travel (if necessary);

xiii. Covid-19 considerations prior to travel (if applicable).