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Court of Protection Newsletter #2315.03.21

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 and Holly Littlewood.

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Jump to: Reports | Guidance | PublicationsCases Review 

Department of Health and Social Care publish guidance concerning visiting care homes during Covid-19

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New Member

In March 2021 Chambers welcomed Holly Littlewood who joins our Public Law team.

Prior to joining Chambers, Holly worked as an in-house lawyer for a large local authority for over 10 years. During this time, Holly developed extensive experience of education-related disputes, including appeals to the First-Tier Tribunal (SEND) relating to Education, Health and Care Plans, and disability discrimination claims. Holly has delivered training to several other local authorities on special educational needs law. Holly also has an interest in human rights, and has volunteered for Liberty as an Information and Advice Volunteer.

Holly accepts instructions in Court of Protection and Education Law work, and will be a contributor to the Chambers’ Court of Protection & Public Law newsletter.

Guidance

The Department of Health and Social Care has published guidance concerning visiting care homes during Covid-19. A summary can be found here.

Updates

The Official Solicitor has published practice notes concerning health and welfare matters and property and affairs matters.

Publications

The Royal College of Physicians has published a guide on supporting people who have eating and drinking difficulties. A copy can be found here.

Cases Review

Sandwell And West Birmingham Hospitals NHS Trust v TW & Anor [2021] EWCOP 13

Court of Protection: Hayden J

An application was brought by the Trust concerning TW, who suffered a catastrophic brain injury, arising from a stroke. The Court was being asked to declare whether it would be in TW’s best interests to continue to receive life-sustaining treatment, ventilation, and blood pressure medication or whether it would be lawful to withdraw it.

On the 12th of December 2020, TW, a 50-year-old man, was admitted to hospital complaining of general dizziness, blurring of vision, a headache, and sensory changes on the left side of his face and in his legs. He was assessed by a consultant and discharged with medication. 5 days later, on the 17th, TW was admitted to hospital again and was treated for general encephalitis. A CT scan was arranged, and the results appeared to be normal. An MRI scan taken on the 23rd of December indicated that the tissue in multiple areas of TW’s brain had been severely damaged due to deprivation of blood. The following day, TW tested positive for Covid-19. TW deteriorated on the 29th of December. He fell into a severe coma and was admitted to the ICU where he had a breathing tube inserted into his windpipe.

At the hearing, Dr A, a consultant neurologist employed by the Trust explained that TW’s injuries to his brain stem indicated that there is no prospect of any recovery. Further CT scans in January 2021 confirmed the worsening of the injuries. The multidisciplinary team treating TW “considered that ventilation and other life sustaining treatment was irreconcilable with his best interests, and that those best interests might more effectively be promoted by a palliative regime.” Professor D, providing an independent expert opinion, confirmed that “TW ‘would never recover a life that was worth living’ in the most basic sense of being aware of his surroundings or recognising whether people were with him or not.” Further evidence from TW’s treating clinicians concluded that “the intensive care interventions for TW are not merely futile but have become burdensome and invasive.” TW’s prognosis of survival without artificial ventilation was estimated to range between a few minutes and a few days.

The position of TW’s brother, FY, a party to the proceedings, was described by Hayden J as “cling[ing] to a hope for recovery which cannot be founded in the evidence.” TW’s daughters asked for “no more than some time to be physically with their father” but understood the “force” of the medical evidence. Unfortunately for the daughters, who resided in Canada, “the restrictions presently placed on international travel… [made it] impossible…to arrange a visit in under three weeks.” Hayden J concluded that facilitating this would compromise TW’s dignity and would be inimical to his best interests at the end of his life.

The Judge determined that the “continuation of ventilatory support and likely invasive treatment can no longer be reconciled with TW’s best interests.” The declaration sought by the Trust was granted.

Read judgment here

X NHS Foundation Trust & Anor v Ms A [2021] EWCOP 17

Court of Protection: Cohen J

This case concerned Ms A, a woman in her 30s, who, at the time, was 38 weeks pregnant. Ms A had been diagnosed with paranoid schizophrenia around 15 years ago. Her symptoms were, to an extent, controlled by medication. The application related to serious medical treatment in the form of obstetric care.

In September 2019, Ms A stopped taking medication as she wanted to try for a child. In early 2021, her obstetrician (‘Dr B’) assessed her as lacking capacity with regard to her mental health care and treatment as she was demonstrating no insight into her previous illness.

On 22 January 2021, a Mental Health Act (‘MHA’) assessment was made that concluded that Ms A was experiencing a relapse of her paranoid schizophrenia characterised by paranoid thinking, formal thought disorder, and a lack of insight. She was detained under s.2 MHA for a period of assessment. A further assessment by Ms A’s clinicians concluded that Ms A lacked capacity to make a decision regarding her mental health and obstetric care. On 11 February, Ms A was detained for treatment under s.3 of MHA 1983.

On the same day, Ms A had a scan which showed the foetus was in the breech position. This meant that unless corrected, the risks in a vaginal delivery were significantly greater, and potentially fatal. An attempt to ‘turn the baby’ in utero was proposed and scheduled to take place a week later. However, before the procedure could be carried out, Ms A become very anxious and distressed and declined the procedure. Dr B stated that Ms A was not able to weigh up the small chance of complications of this procedure and the benefits if successful when compared with the potential risks attached to a vaginal breech birth.

Given the lack of success with an eventual attempt to turn the baby on 25 February, two options remained: a vaginal breech birth or planned caesarean section. Ms A’s wish has consistently been to have a normal vaginal birth at home. A discussion between Ms A and the Official Solicitor’s agent demonstrated that Ms A was strongly opposed to a planned caesarean section despite the risks of a vaginal birth and emergency caesarean if required.

Cohen J determined that Ms A’s mental functioning had improved since her admission to hospital but she was still unable to weigh the risks of what she wanted ( a vaginal birth at home). The judge observed that this was not an option as Ms A remains detained under s.3 MHA. Medical evidence calculated the chances of requiring an emergency caesarean section with a breech baby at 40%. Emergency caesarean sections were described by the judge as “rushed, unplanned and risky.” Cohen J did not doubt that if Ms A regained capacity, she would wish for a safe delivery for her child.

The judge concluded that Ms A did not have capacity to make decisions concerning her obstetric care and treatment. Cohen J was “in no doubt that the views expressed by Ms A are not in her best interests.” The declarations sought by the Health Trusts were made and the judge also authorised the deprivation of liberty Ms A would face when transferred between hospitals.

Read judgment here

East Lancashire Hospitals NHS Trust v GH [2021] EWCOP 18

Court of Protection: MacDonald J

This case involved an out of hours hearing with respect to GH, a 26 year old woman who suffers from anxiety, depression and agoraphobia. GH had gone into labour at home nearly 72 hours earlier but had thereafter suffered an obstructed labour. It became apparent that GH required urgent in-patient obstetric treatment and a possible emergency caesarean section. However, GH was refusing to agree to that course of action.

The NHS Trust brought an urgent application which was heard by telephone from 10pm. GH was represented by the Official Solicitor, Ms Sarah Castle, and GH’s Specialist Perinatal Community Mental Health Midwife and Consultant Obstetrician gave evidence and were cross-examined.

MacDonald J agreed with Counsel for the NHS Trust that this case was distinguishable from An NHS Trust and Anor v FG (by her litigation friend, the Official Solicitor) [2014] EWCOP 30 (in which Keehan J made clear the heavy burden on Trusts to engage in early and thorough planning in order to prevent the need for urgent out of hours applications). GH had until recently been assessed as having capacity with respect to decisions concerning the management of her pregnancy and birth, and had previously agreed to be admitted to hospital if necessary. It had only become clear in the latter part of the day prior to the application that GH’s anxiety and agoraphobia had become the dominant feature in her decision making, leading to an assessment that she had lost the capacity to make the relevant decisions.

MacDonald J found that GH lacked the capacity to decide whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section. Her agoraphobia and anxiety were preventing her from using or weighing information; in particular, she was unable to acknowledge the risk of serious injury or death attendant upon remaining at home in what she considered to be her “safe space”. Further, there was no evidence to suggest that GH would regain that capacity prior to admission to hospital becoming necessary.

MacDonald J decided that it was in GH’s best interests to be conveyed to hospital by ambulance, by reasonable force if necessary, and for practitioners to carry out such treatment as may in their opinion be necessary for the management of GH’s pregnancy and delivery as per the Obstetric Management Plan. MacDonald J gave significant weight to the fact that, when GH had capacity, she had agreed to be admitted to hospital if necessary. Further, she was “clearly looking forward to the birth of the child and wished for the birth to go smoothly and safely”. MacDonald J also weighed in the balance the risks attendant on admission to hospital, as set against the greater risks to GH’s and the unborn baby’s health of not being now admitted.

MacDonald J noted that “it is a very grave step indeed to declare lawful medical treatment that a patient has stated she does not wish to undergo. It is a graver step still to compel, possibly by means of the use of sedation and reasonable force if further gentle persuasion fails, the removal of a person from their home to ensure their attendance at hospital for such medical treatment.” MacDonald J was satisfied that the NHS Trust had “discharged the heavy burden resting upon it” in demonstrating that the order was appropriate in the circumstances.

In a happy postscript, the judgment records that following the out of hours hearing, GH gave birth to a healthy baby boy at home, before it was possible to execute the arrangements authorised by the court for her transportation to hospital.

Read the judgment here

NZ, Re (Mental Capacity Act 2005) [2021] EWCOP 16

Court of Protection: Hayden J

The Applicant Trust sought declarations that NZ lacks the capacity to make decisions about her care and treatment and that it would not be in her best interests to continue to receive life-sustaining treatment. The Trust instead proposed a palliative care regime.

NZ, a woman in her early thirties, was “gravely ill with pneumonitis, an inflammation of the lung tissue, caused by Covid-19.” On 20th January 2021, NZ was admitted to hospital suffering from the effects of Covid-19. She was diagnosed with pneumonitis shortly after admission. NZ was 32 weeks pregnant at the time and a decision was taken to deliver her child by caesarean section. Following delivery, NZ’s condition deteriorated further and she was transferred to an intensive care unit on 22nd January 2021. Despite receiving treatment, a CT scan taken on 10th February 2021 showed that “NZ’s pancreas had ceased to function, part of her left lung had died, and the remaining lung tissue had become ‘densely consolidated or collapsed’.” Because of the need to sedate NZ, she was kept in a “pharmacologically induced coma.”

On 15th February, a decision was taken by NZ’s clinicians that “the focus of NZ’s treatment could no longer be the preservation of her life, but should move to palliative care.” Giving evidence, one of NZ’s treating doctors concluded that treatment was in essence “prolonging her death” and that “further treatment would be professionally unethical.”

Hayden J heard evidence from NZ’s family: she was a religious (Muslim) woman who prayed five times a day. The family believed that any act taken that would end NZ’s life would be inconsistent with their faith. The Judge described their position as “a conflict between a religious belief, genuinely and devoutly held, and medical science.”

Reminding parties that “best interests requires the broad canvas of NZ’s life, circumstances and needs” to be taken into consideration, the Court nonetheless could not “seek to compel or encourage a medical professional to act in a way that he or she considers unethical.” NZ’s clinical prognosis meant that “continuation of treatment would be taking risks for no benefit” and could not be reconciled with the need to promote her dignity.

Hayden J concluded that the care plan was “structured to avert further pain and its central premise is to promote NZ’s dignity at the end of her life.” The declarations sought by the Trust were granted.

Read judgment here

HD (Capacity to Engage in Sexual Relations) [2021] EWCOP 15

Court of Protection: Cobb J

HD is a woman in her late 20s with a mildly severe learning disability. The central issue in this case was whether she had the capacity to decide to engage in sexual relations.

At the time of the hearing, HD lived in a 24-hour supported residential placement and was shortly due to move to a “supported living” 1-bed flat with full-time support staff. HD was described as “[dreading] the notion of being single” and as “[craving] male relationships”. She was in a relationship with Z, a man with a learning disability, and had stated that she “wishes to live with Z, and that when she is in her own flat she will want unsupervised (i.e. private) time with him”.

Cobb J referred to the Court of Appeal’s decision in A Local Authority v JB [2020] EWCA Civ 735 (“Re JB”). In this case, it was clarified that an analysis of capacity in relation to sexual relations should normally be framed in terms of whether P has capacity to decide to engage in sexual relations, as opposed to simply having capacity to consent to sexual relations. As such, the information relevant to the decision may include “the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it”.

Cobb J held that “on the ultimately undisputed evidence and on the application of the test propounded in Re JB, I am driven to the conclusion that while HD understands the need for a sexual partner to consent to engage in sexual relations, it is clear from the evidence that she cannot currently understand the need for a sexual partner to have capacity to consent to sexual relations”. He agreed with Counsel for HD that there was no proper basis to amend or disapply the relevant information as set out in Re JB. As such, he found that HD lacked capacity to decide to engage in sexual relations.

Cobb J recognised that this finding represented a significant interference in HD’s life:

“She is soon to be 30 years old and for the first time in her life will be living in her own apartment. She is at a crucial stage in her future development and has much to look forward to. She has met a partner (Z) with whom she appears happy. No assumptions can be made about the strength of her feelings for Z, or his for her, simply because they are both learning disabled; I value his and her achievements in finding happiness in a relationship in the same way as capacitous non-learning-disabled couples”.

Counsel for HD submitted that Re JB creates a “heightened civil test” which goes beyond the criminal law test of reasonable belief in consent in relation to the offence of rape. Cobb J declined to determine this point but noted that “Re JB was clear that the jurisdiction of the Court of Protection has a distinctly different focus from the criminal law and that it was not “appropriate to view these issues through ‘the prism of the criminal law’”.

Read judgment here

A Local Authority v (1) ZK (2) SB and (3) HM [2021] EWCOP 12

Court of Protection: HHJ Burrows

ZK is a 37-year-old man, with Landau-Kneffler Syndrome (also known as acquired aphasia with epilepsy). This syndrome is characterised by the onset in childhood of a loss of receptive and expressive language skills along with epileptic seizures. In ZK’s case, the syndrome had rendered him unable to understand aural language.

Proceedings were commenced before the Court of Protection following concerns in 2017 about whether ZK was to be married, prompting an application for a Forced Marriage Protection Order. During the currency of the proceedings, it became apparent that ZK was able to make progress in language development, via the use of sign language, writing and pictures.

Until September 2020, ZK lived with his mother in the family home. By that time, ZK was consistently expressing a wish to leave the family home, and that his family should not be given advance notice of any move. The Local Authority, having determined that ZK lacked the capacity to make the decision, took a best interests decision to move ZK into a supported placement.  ZK’s move was carried out without consulting with, or notifying, ZK’s family. The separation after removal was sanctioned by the Court.

The case then came before HHJ Burrows to determine whether it was in ZK’s best interests to remain in a supported placement or to return to the family home.

HHJ Burrows stated that the evidence before the Court was sufficient to displace the statutory presumption of capacity. However, it was an issue that required further “serious consideration and scrutiny”, in light of ZK’s progress in language development. To that end, an expert had been jointly instructed and the issue would be finally determined at a future hearing.

In terms of best interests, the local authority, supported by the Official Solicitor for ZK, argued that “ZK is doing extremely well where he is, doing what he is, and he wants to remain there. To deny him that wish and send him back to his family would be a serious blow to his confidence and self-esteem, as well as a serious restriction on him continuing to do what he wishes to do”.

Whilst HHJ Burrows described the family as “ordinary people wanting to do what they think is best for their relative”, he went on to describe the family’s position, that ZK should return to the family home, as “being unclear, not well thought through, and lacking in the specifics needed for a care plan”. Further, HHJ Burrows rejected the family’s assertion that, following FP v GM & A Health Board [2011] EWHC 2778 (CoP), the appropriate question for the Court was: why not home? In that case, Hedley J had considered how Article 8 ECHR might apply to best interests decisions about residence, in the context of an elderly man with dementia who was in hospital and who wanted to return to his home. This was very different from ZK’s situation, in that ZK had been enabled to leave the family home at his own request and had repeatedly expressed a wish to remain in his new placement. HHJ Burrows stated that Article 8 ECHR created “a right not an obligation to have a family life”.

In light of the benefits of the placement to ZK, along with his “clear and consistent” wishes and feelings, it was declared to be in ZK’s best interests to remain in his placement.

Read judgment here

London Borough of Haringey v Irene Emile [2020] MHLO 70 (CC)

County Court: HHJ Saggerson

This case considered the appropriate level of damages for wrongful detention where a local authority had failed to authorise a deprivation of liberty in a care home for 7 years and 10 months. An award of damages of £143,000 was upheld on appeal.

Mrs Emile was placed in a care home by the local authority in October 2008, following concerns about her welfare. She subsequently moved to a nursing home in March 2016. The local authority took no steps to authorise the deprivation of Mrs Emile’s liberty whilst in her first care home, and a standard DoLS authorisation was not obtained until August 2016.

The local authority brought a claim against Mrs Emile in respect of unpaid care home fees in the period from 2013 to 2017. Mrs Emile (by her litigation friend) brought a counterclaim for damages for wrongful detention, on the basis that Mrs Emile lacked capacity to make decisions as to her residence from October 2008 onwards, and that the local authority had failed to seek the appropriate authority to detain her. The local authority’s defence to the counterclaim was that even if Mrs Emile lacked capacity and had been wrongfully detained, the breach was “technical”, in that proper authorisation would have inevitably followed had the appropriate safeguards been applied. As such, the local authority asserted that nominal damages were appropriate.

At first instance, the District Judge disagreed that nominal damages were appropriate. He allowed the local authority’s claim for unpaid care fees of nearly £90,000 and awarded Mrs Emile the sum of £130,000 for damages for wrongful detention between October 2008 and August 2016, plus a 10% uplift based on Simmons v Castle [2013] 1 WLR, setting the two sums off against each other.

The local authority appealed on various grounds, including that the District Judge should have made a nominal award of damages, and that the award was excessive.

HHJ Saggerson concurred with the District Judge’s finding that this was not a “nominal damages” case. On the facts as the District Judge found them, care home residence was not inevitable. The local authority’s failure to comply with the Mental Capacity Act 2005 was “substantial and causative of harm” and was “more than merely technical”.

In terms of the quantum of damages, HHJ Saggerson observed that whilst the damages awarded may have been very generous, or even “at the very top end of the permissible range for this sort of ‘benign’ confinement”, they were not “to a sufficiently high degree disproportionate to the harm suffered by the Defendant as to warrant its being set aside”. The District Judge was entitled to bear in mind: that the local authority had potentially trespassed on the Defendant’s freedom of movement by failing to consider less restrictive options than a care home; that the Defendant had historically expressed a firm preference not to live in a residential home; and that “in her declining years, the Defendant was unlawfully subject to routine direction by residential staff, had her daily life and visits subjected to a formal regime and contact with family subjected to official approval (however benign)”.

Read judgment here

SD v Royal Borough of Kensington And Chelsea [2021] EWCOP 14

Court of Protection: Hayden J

V, a woman in her seventies and living in a care home, was the subject of this application. SD, her daughter, applied for a declaration that it would not be lawful or in her best interests to administer V with a vaccine against Covid-19 or any other vaccine. V had been living with Korsakoff’s syndrome, a form of alcohol-related brain damage, for over a decade. V’s lack of capacity was not in dispute.

SD’s position was that the Covid-19 vaccines that had been developed had not undergone sufficiently rigorous safety trials and there were unacceptable risks of side effects that contraindicated the taking of the vaccine. The Judge heard that 2 months had passed since SD’s position was made known to the care home and the matter coming to court; the delay was “unsatisfactory”.

The Local Authority contended that the vaccinations available have all been tested rigorously and have been approved by the Medicines and Healthcare products Regulatory Authority. Further, the risks associated with side effects were minimal and that V remains at “significant risk of contracting the virus and of becoming seriously ill or dying if she does so.”

Hayden J found that, while capacitous, V had demonstrated “diffident compliance with the advice of medical professionals.” Further, all other residents and staff of the care home had been vaccinated by the time the matter came before the Judge; because no vaccine is 100% effective “just as the risk to all other residents of the home diminishes, V’s risk of contracting the virus will elevate as the outside world gradually returns.” Discussing SD’s views, he determined that “strongly held views by well-meaning and concerned family members should be taken into account but never permitted to prevail nor allowed to create avoidable delay. To do so would be to expose the vulnerable to the levels of risk I have identified, in the face of what remains an insidious and highly dangerous pandemic virus.”

Hayden J decided that it was in V’s best interests to receive the vaccine. However, he warned against any presumption that this will always be the case. He concluded that “respect for and promotion of P’s autonomy and an objective evaluation of P’s best interests will most effectively inform the ultimate decision.”

Read judgment here

The Newcastle Upon Tyne Hospitals NHS Foundation Trust v RB [2021] EWCOP 11

Court of Protection: Lieven J

An application was made by the Trust in respect of RB, a 30-year-old man diagnosed with Fragile X Syndrome, a genetic condition causing learning disabilities. RB’s mother, SB, was his litigation friend and was represented by counsel. The issue before the court was whether the form of cancer care set out by the Trust is in RB’s best interests and if the court should make the declarations sought. During the hearing, SB accepted that the treatment plan is in RB’s best interests.

The court heard that in general terms, the type of cancer RB suffered with is “highly curative” if chemotherapy is used. Without it, RB is likely to die within a year. Given the prognosis, the Judge did not feel that ‘doing nothing’ was an option in this case. Lieven J was able to find that RB lacked capacity. After hearing evidence, including expert evidence, section 16 declarations were made that concluded that the Trust’s proposed treatment plan is in RB’s best interests.

Read judgment here

An NHS Trust v XB & Ors [2020] EWCOP 71

Court of Protection: Theis J

An application was made by the Trust seeking a declaration regarding XB’s capacity and that it is in XB’s best interests to covertly administer certain antihypertensive medication (‘the medication’) in accordance with a Covert Medication Care Plan. XB suffers from life-threatening hypertension that has placed his life in danger. XB, who was diagnosed with treatment-resistant paranoid schizophrenia, had thus far refused to take the medication. XB’s treating clinicians began administering the medication covertly in September 2019.

XB’s family were not invited to the meeting in September 2019 that determined that the clinicians would administer XB’s antihypertensive medication covertly. The Trust acknowledged that “the family should have been invited to the September 2019 Best Interest meeting and the family had made clear prior to that meeting and afterwards that a court application should be made.” The family did not actively oppose the declarations sought. An application was not made to the Court of Protection by the Trust until August 2020 even though it had received legal advice in April 2020 stating such an application was “necessary”. The Judge concluded that XB lacks capacity to consent to antihypertensive medication and it is lawful for XB to be given antihypertensive medication covertly.

Theis J however took the opportunity to emphasise that the “administration of covert medical treatment is a serious interference with an individual’s right to respect for private life under Article 8 ECHR” and that “the application to the court should have been made earlier, or at the very least very serious consideration given to doing so.” In this case, an “application was required due to the circumstances of this case namely the nature of the proposed course of action (administration of covert medication), the position of the family and their wish for this matter to be considered by the court, the potential impact of this course of action on the relationship XB has with the clinical team involved in the covert medication decision and XB’s relationship with the family due to their involvement with the clinical team responsible for that decision.”

Read judgment here