Court of Protection Newsletter #2409.06.21
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.
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CR, Re  EWCOP 19
Court of Protection: Butler J
The issue in this case was to determine if it is in CR’s best interests to have a declaration made to enable the Applicant CCG to administer a Covid-19 vaccination to him. CR is 31 years old and has been diagnosed with a lifelong severe learning disability, autism, and epilepsy. CR is classed as “clinically vulnerable” and falls within the priority group for a vaccination. It was agreed by all that CR lacked capacity.
SR, CR’s father, objected to the vaccination being given to his son for a range of reasons, including concerns surrounding the efficacy and testing of the vaccine. The judge heard that “the autism which CR has, is attributed by SR to an MMR vaccination that he received at birth.” Although CR’s current place of residence, a care home, did not have any Covid-19 cases at the time of the hearing, medical evidence stated that should CR contract Covid-19 the effects “would be significant and serious, with a risk of severe ill health and possibly death.”
Butler J could not determine what CR’s views or wishes might be as his incapacity had been lifelong. The judge summarised that SR’s views are genuinely held and his objections were not intrinsically illogical. However, the reasons for opposing the administration of the vaccine “have no clinical evidence base.” From an objective perspective, the discredited theories linking the MMR injection to autism had “no basis in science.” Butler J concluded that the declarations sought by the CCG would be granted but with the important caveat that the Applicant was not authorized to use physical intervention against CR in order administer the vaccine.
Read judgment here
Lilia -(Withdrawal of Life Sustaining Treatment)  EWCOP 23
Court of Protection: Williams J
On 18 January 2021, CD, a 20-year-old woman, attempted to commit suicide by asphyxiation. Her attempt was unsuccessful, but as a result, she was taken to a London Hospital where she has remained in intensive care. CD was either in a persistent vegetative state or the lower level of a minimally conscious state and plainly lacked capacity. CD’s father felt that there was some chance that her condition would improve and wished to seek a further opinion. He also believed that Lilia’s wishes would be to continue to live. CD’s mother and sisters had reached the conclusion that it was not in Lilia’s best interests for life-sustaining treatment, specifically clinically assisted nutrition and hydration, to continue to be provided.
Williams J heard that CD had “complex and multi-faceted” psychological and psychiatric conditions that led to her attempting to end her life. On 30 December 2020, she was admitted on a voluntary basis to a private psychiatric hospital for treatment for her depression and Post Traumatic Stress Disorder. She had also been diagnosed with Emotionally Unstable Personality Disorder and had a history of self-harming behaviours. It was here where she attempted to end her life on 18 January 2021.
The clinical team at the Trust were of the view that continuing treatment was futile and with no prospect of any meaningful recovery. CD’s mother and sisters agreed with the opinion of the clinical team. CD’s father considered that she would wish for treatment to continue and believed that she would derive some pleasure from her existence, despite the prognosis and limitations that would inevitably exist.
Medical evidence suggested that it was highly unlikely that CD would engage in functional awareness. A second opinion sought by the father concluded that CD was in a vegetative state with it more likely than not that CD would remain in this state. Williams J was also provided with the opinions of CD’s family and friends which helped him build a picture of what her wishes and feelings would have been.
Williams J concluded that the totality of the evidence points to the conclusion on the balance of probabilities that CD will remain in a vegetative state and that this could be for a period of many years. In order to remain alive, CD would require ongoing medical interventions. The alternative would be to cease treatment and allow her body to pass into renal failure and eventual death as a consequence of her not receiving nutrition or hydration. It was thought that this process could take around 3-4 weeks. The Judge concluded that “taking into account all of the medical components of her situation and what…are her likely wishes…she would not have wished to continue life-sustaining treatment but that she would have opted for its cessation and for the implementation of a palliative care regime which would enable her to pass from this life.”
The Judge was satisfied that it was not in CD’s “best interests to administer life-sustaining medical treatment but rather that it is in her best interests to implement a palliative care regime the consequence of which (but not the aim) will be the end of her life.”
Read judgment here
A Local Authority v C and Ors  EWCOP 25
Court of Protection: Hayden J
This case concerned C, a 27 year old man with diagnoses of Klinefelter syndrome (XXY syndrome) and autistic spectrum disorder. Whilst C had the capacity to engage in sexual relations, and to decide to have contact with a sex worker, he lacked the capacity to make decisions in relation to his care and treatment, and his financial affairs.
C having expressed a wish to know whether he could have contact with a sex worker, the Local Authority commenced proceedings to address the lawfulness of any arrangements made to facilitate this.
The issues which the Court was asked to determine were whether a care plan to facilitate C’s contact with a sex worker could be implemented without the commission of an offence under the Sexual Offences Act 2003 (“SOA”), and if not, whether the SOA could be read compatibly with the European Convention on Human Rights, or whether the Court should make a declaration of incompatibility.
The most relevant potential offence on the facts of the case was causing or inciting sexual activity, contrary to s.39 SOA. S.39 SOA provides that where a care worker (A), is involved in B’s care in a way which falls within s.42 SOA, and where B has a mental disorder, then it is an offence for A to intentionally cause or incite B to engage in a sexual activity.
The position of C (by his litigation friend), and of the Local Authority, was that for C’s care workers to facilitate C to have contact with a sex worker would not involve the commission of an offence under s.39 SOA. On the other hand, the position of the Secretary of State for Justice was that “a construction of Section 39 which rendered lawful a carer’s assistance to C in securing the services of a sex worker, would be to go beyond the wording of the legislation and ‘would amount to an amendment to the law, as opposed to an interpretation, be it purposive or Convention compliant’”.
Hayden J found that facilitating C to have contact with a sex worker would not in principle lead his care workers to be committing a criminal offence.
In reaching his decision, Hayden J noted that the approach of the SOA was to strike a balance between protecting those with mental disorders, whilst enabling independent choices. In that context, S.39 SOA was drafted with the objective of criminalising those in a position of authority and trust whose actions are calculated to repress the autonomy of those with a mental disorder, in the sphere of sexual relations. It was not drafted with the objective of criminalising carers who were motivated to facilitate an individual’s autonomous sexual expression.
Further, Hayden J found that C’s Article 8 rights were engaged. A restrictive reading of s.39 SOA would disproportionately interfere with the Article 8 rights of those with a mental disorder, which would amount to a violation of Article 14 (prohibition on discrimination when applying the other protections in the ECHR).
The Secretary of State applied for permission to appeal on the grounds that (i) Hayden J’s interpretation of the words “intentionally causes or incites” in s.39 SOA fail to give the words their natural meaning; and that (ii) Hayden J’s interpretation of s.39 SOA effectively gives the court’s imprimatur to prostitution which it is contended would be contrary to public policy.
Hayden J granted permission to appeal pursuant to r.52.6(1)(b) of the Civil Procedure Rules (“there is some other compelling reason for the appeal to be heard”), in consideration of the tension between general policy considerations, and Hayden J’s conclusions on the proper interpretation of s.39 SOA.
An NHS Trust v P  EWCOP 27
Court of Protection: Mostyn J
This case considered whether P, a 60-year-old woman with diabetes, paranoid schizophrenia and HIV, had litigation capacity.
The proceedings were brought by the NHS Trust because P was refusing to take the antiretroviral medication she had been prescribed to treat her HIV, on the basis of her delusional beliefs.
In a previous hearing, Mostyn J had accepted the NHS Trust’s submission that P had litigation capacity. The NHS Trust relied upon the assessment of P’s consultant psychiatrist, Dr Kemp, that P’s delusions were “encapsulated” and that P was “coherent and not thought disordered”, and that as such she would “be able to participate in litigation proceedings and understand the process”. The NHS Trust further relied upon the decision in Sheffield City Council v E  EWHC 2808 (Fam), in which it was held that, while it will be rare for a person to have litigation capacity who does not have subject matter capacity, it is possible in principle.
A further assessment of P’s litigation capacity was carried out by P’s care coordinator, Miss Grant, who concluded that P lacked litigation capacity. In light of this, Dr Kemp carried out a second assessment, and also concluded that P lacked litigation capacity. Dr Kemp pointed in particular to P’s statement that she did not think the proceedings related to her, and P’s refusal to read the court papers or to communicate with others about the proceedings.
Accordingly, the NHS Trust reached the view that P did not have litigation capacity, and notified the Official Solicitor. At the subsequent hearing, the Official Solicitor’s position was that P had litigation capacity, and that the Official Solicitor did not need to be involved in the proceedings.
Having heard evidence from Dr Kemp and Miss Grant, Mostyn J concluded that P lacked litigation capacity.
Mostyn J stated that unlike certain other human activities, the “level of capacity to conduct litigation is set relatively high”. He described it as “virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter.” He went on to state that whilst differential decisions as to subject-matter capacity and litigation capacity are not impossible, “such a case should be as rare as a white leopard”.
Read judgment here
A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (Appellant) 2020/0133 UKSC
The Supreme Court has granted permission to JB to appeal the decision in A Local Authority v JB  EWCA Civ 735.
JB is a 36 year old man, with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. A central issue in the proceedings was whether JB had capacity to decide to engage in sexual relations.
At first instance in the Court of Protection, the question was framed as “whether a person, in order to have capacity to consent to [sexual] relations, must understand that the other person must consent”. Roberts J held that for the purposes of determining the capacity of an individual in relation to sexual relations, the information relevant to the decision does not include information that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law. On that basis, it was declared that JB had capacity to consent to sexual relations.
On appeal to the Court of Appeal, Baker J recast the decision as one of “engaging in”, rather than “consenting to”, sexual relations. Further, he stated that the information relevant to the decision would generally include “the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity”. Accordingly, the declaration that JB had capacity to consent to sexual relations was set aside.
On 13 April 2021, a Supreme Court panel comprising Lord Hodge, Lady Arden and Lord Hamblen granted permission to JB to appeal the Court of Appeal’s decision.
P (Discharge of Party), Re  EWCA Civ 512
Court of Appeal: Jackson LJ, Baker LJ, and Warby LJ
AA, the mother of P, was discharged as a party in the Court of Protection by Hayden J on the basis that P would suffer serious harm should AA receive information in the case. The discharging of AA as a party was done without notice, without evidence being disclosed to AA, and without an opportunity for AA to make representations against the decision. Hayden J also did not provide reasons for the decision.
The Court of Appeal heard that sometime during or after August 2018, “the local authority became aware of allegations that P had been sexually abused by a male visitor to the family home, understood to be AA’s partner.” The local authority had disclosed this to the Official Solicitor and to the court but not to AA or her legal representatives. Some of the evidence contained information regarding an allegation that P had informed AA of this alleged incident but that AA had chosen not to believe her.
The Court of Appeal reviewed the law concerning the discharge of matters, and importantly the Article 6 and Article 8 implications of Hayden J’s decision, before reaching its conclusion. Baker LJ considered that the “judge was entitled to consider the matter in the first instance without notice to the appellant and to withhold evidence from her.” The Court concluded however that Hayden J “plainly went too far by discharging the appellant as a party without giving her the opportunity to make representations and by failing to consider alternative procedures which might have protected P’s best interests whilst limiting the infringement of the appellant’s rights.”
The Court of Appeal unanimously allowed the appeal and reinstated AA as a party; however, Baker LJ directed that “no further evidence or information relating to the proceedings be served on the appellant for a period of 28 days after handing down of this judgment to allow the respondents time to take stock and decide what course to follow.” Baker LJ also note that this hearing appeared to be “the first case in which a special advocate has been instructed in the Civil Division of the Court of Appeal.”
Read judgment here
Re EOA  EWCOP 20
Court of Protection: Williams J
EOA, a 19-year-old man, along with his twin brother, DOA, and two other siblings, had been removed from the care of their parents in 2015 as a result of ongoing concerns about the parents’ treatment of the children, which included keeping them isolated from the rest of society, not allowing them to attend school or to receive any medical treatment and subjecting them to extreme religious and anti-social indoctrination as well as emotional and physical abuse.
Psychological assessments of EOA carried out during the care proceedings concluded that EOA might have a learning disability and autistic spectrum disorder, and that he was very much under the influence of DOA. In anticipation of EOA reaching the age of 18, the local authority applied to the Family Division under the inherent jurisdiction and to the Court of Protection for a personal welfare order in respect of EOA.
In previous hearings, it had been declared that EOA lacked capacity to conduct litigation, about his care and support, where he should live and in relation to his property and affairs. It had been decided that EOA should move from his foster placement to live in a residential placement. In this hearing, the court was tasked with determining whether EOA had capacity to make decisions in relation to foreign travel and holding a passport, the use of social media and the internet, and contact with his family and others, and whether it was in EOA’s best interests for a care and support plan to be implemented which would give rise to a deprivation of EOA’s liberty.
Evidence from Dr Layton, Consultant Psychiatrist, considered the interrelationship between EOA’s autistic spectrum disorder, and developmental factors related to abuse, neglect and indoctrination. With the benefit of this expert evidence, Williams J sought to identify the causal nexus between these impairments or disturbances in the functioning of the mind or brain, and EOA’s inability to understand, use and weigh the information relevant to the decisions in question. Williams J held (at para. 48) that:
“Although I do not need to decide the issue as I am satisfied that EOA has an autistic spectrum disorder and that he lacks capacity in the relevant domains as a consequence of the fixed thinking associated with his autism and his consequent inability to weigh information it does seem to me that there is an issue which may at some stage need determining as to the role that other features of EOA’s psychological condition may be playing in relation to questions of capacity and jurisdiction … The absence of any specific diagnosis in relation to EOA of the effects of his neglectful and abusive childhood does not mean that they may not still be present and playing a part in his current functioning. In theory at least it seems to me possible that even if it were not possible to fit those consequences into any known diagnostic category that they would be capable of having caused an impairment of or a disturbance in the functioning of the mind or brain which would potentially bring them within the ambit of section 2(1) of the Mental Capacity Act …Thus, even where the causes of incapacity caused by autism resolved that might still leave issues to be determined as to whether the consequences of his abusive indoctrination had consequences in terms of his capacity. Self-evidently it might also engage the protective Jurisdiction of the court in relation to vulnerable adults even if the consequences did not sound in capacity issues.”
Williams J concluded that EOA lacked capacity in the three areas and that it was in EOA’s best interests for the care, support and treatment plan to be implemented once amended and finalised. Finally, Williams J indicated that he would write a short letter to EOA to explain why he had reached the conclusions he had.
Read the judgment here: EOA, Re  EWCOP 20 (29 January 2021) (bailii.org)
Re AB  EWCOP 21
Court of Protection: HHJ Owens
This case concerned AB, a 24-year-old woman diagnosed with congenital hemiplegia/cerebral palsy following a perinatal hypoxic brain injury. AB has organic personality disorder, anxiety and depression, left-sided weakness and a loss of vision in her left eye. BB and CB are AB’s parents.
AB has a history of multiple psychiatric admissions, criminal convictions and imprisonment, and breakdown of previous placements. At the time of the hearing of the Court of Protection proceedings, AB was remanded on bail in respect of criminal proceedings for assault.
AB was living in the care home to which she had been bailed in the criminal proceedings. All parties agreed that it would be in AB’s best interests to return home to live with her parents. The question for the Court of Protection was which of two proposals designed to support her returning home would be in AB’s best interests: (1) the local authority’s proposal for AB to remain in the care home for approximately 3 more months, with a plan to reduce the level of care provided to her there to no more than 1:1 before her return home; or, (2) AB’s parent’s proposal for AB to return home within 8 to 12 weeks, initially with 2:1 support from care agency staff. The Official Solicitor supported the parents’ position.
The local authority’s stance was that 2:1 supervision was a trigger for AB’s challenging behaviour. Whilst 2:1 supervision was less noticeable to AB in the larger environment of the care home, in the smaller home environment it would be more obvious, and therefore riskier.
AB’s parents and the Official Solicitor submitted that an earlier return home with 2:1 supervision would be less restrictive than remaining in the care home for a longer period. 2:1 supervision was simply one of a number of potential trigger factors for AB. Further, AB had begun to demonstrate some acceptance of the possible need for 2:1 support in order to allow her home sooner.
HHJ Owens noted that both the independently instructed consultant clinical neuropsychologist, Dr Prangnell, and the independently instructed consultant psychiatrist, Dr Lohwala, were of the view that AB would require 2:1 care upon her return home whenever that might be, due to AB’s difficulties with generalisation and the stress of the transition between placements. Further, HHJ Owens noted that all of the professional evidence pointed to the conclusion that the longer AB had to wait to go home, the greater the risk that she would become frustrated, leading to an increase in challenging behaviour.
In light of the above, HHJ Owens held it to be in AB’s best interests to return home with a package of care comprising 2:1 staffing throughout the day and 1:1 staffing at night, and that the move should take place no sooner than 8 weeks and no later than 12 weeks from the date of the hearing.
Read the judgment here: AB, Re  EWCOP 21 (25 January 2021) (bailii.org)