Court of Protection Newsletter #2513.07.21
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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KG (Capacity)  EWCOP 30
Court of Protection: Cobb J
KG, a 68-year-old man, had been living in a hospital since 2016 and expressed a wish to remain there rather than to move to a residential home near to where his family resided. The judge was asked to determine whether KG had capacity to determine where he should live.
The court heard that KG was admitted to hospital as an inpatient in 2016 but had been clinically fit for discharge for over 2 years.
Cobb J reached the conclusion that despite KG’s apparent understanding of the issues related to his residence and care and his expression of discontent at having to leave his current place of residence, he was unable to retain “abstract information about his support needs” and was unable to “use and weigh the information relevant to the decision about his future residence and care.” He therefore lacked the capacity to make the relevant decisions.
The Clinical Commissioning Group and the local authority were directed to file relevant evidence so that the court may properly determine the best interests of KG at the welfare stage.
Read judgment here
A Local Authority v TA & Ors  EWCOP 22
Court of Protection: Cohen J
The Court was asked to determine if TA, the son of GA, an 87-year-old woman, should be removed from his mother’s home (where he resided) and to bar him from return so that a local authority care package could be put in place to look after his mother in the home. It was not disputed that GA lacked mental capacity to make the relevant decisions.
The local authority case was “that TA exercises abusive and controlling behaviour towards his mother and so dominates her life that she:
(i) is unable to enjoy personal dignity;
(ii) has lost contact with her community and with her family, apart from HA and TA, and to some extent XA [TA’s sibling]; and
(iii) is denied access to important healthcare and treatment.”
Despite being provided with links to the hearing throughout the hearing, and provision made for his in-person attendance, TA chose not to be present at the hearing and instead made applications to adjourn the proceedings on 5 different occasions, none of which were successful. TA’s position was understood to be “that he should remain in charge of his mother’s care in the home with at least the temporary assistance of XA who has moved in there with him.” The local authority social worker gave evidence detailing that XA’s husband had told him that XA “had no intention of participating in the case.”
Cohen J heard evidence indicating that TA had historically made it difficult for support workers to access the property he shared with GA and later refused to provide the local authority with information concerning the whereabouts of GA. XA had, and in non-compliance with a court order, refused to allow the local authority access to the property GA was residing in. No care provider was willing to “take on the service [of caring for GA] if the carers would be subject to TA filming and recording them” as they had been by TA. An independent social worker told the Court that “any form of collaborative approach was doomed to failure” should TA remain in GA’s property.
Cohen J made orders directing TA and XA to leave GA’s home so that she could receive care at home. He was further prohibited from entering within 100 yards of GA’s home and he was barred “from removing the Motability car from the property which is there for his mother’s benefit.” Further, he must not post “articles or other information in the public arena” concerning this case. A civil restraint order against TA was made for a period of 2 years due to his making of applications deemed by the Court as “totally without merit.”
TA’s communication with the local authority was limited as was his correspondence with the Official Solicitor. Additionally, committal proceedings in respect of TA remain an issue that will be dealt with by the Court at a later hearing.
Read judgment here
University Hospital Birmingham NHS Foundation Trust v AI & K  EWCOP 37
Court of Protection: Hayden J
The applicant in this matter (“The Trust”) sought a declaration from the court that it would be lawful and in the best interests of AI, a 48 year old man, to discontinue any further attempts to provide dialysis to him. AI had a history of Schizophrenia and had been under the care of the community mental health team for some time. It was not disputed that he lacked mental capacity to make the relevant decisions.
AI was diagnosed with end of stage kidney disease in September 2019. He reluctantly accepted treatment from the hospital but only after voicing his concerns regarding the treatment he was receiving. Some time after July 2020, AI was physically well enough to be discharged but continued to state that he would not attend his outpatient dialysis appointments. Despite attending 11 planned sessions of dialysis, AI did not continue with this course of treatment as an outpatient. He returned to hospital in January 2021 as his health deteriorated in consequence of the discontinuance of dialysis. A cycle of poor compliance with outpatient treatment began where AI began receiving “reactive” dialysis when he made himself available at the hospital where he was being treated.
AI’s condition deteriorated and at the time of this hearing before Cobb J, he was expected to die within 2-3 weeks. The Trust asked the court to determine the issue of whether dialysis should continue or if its palliative care plan should be endorsed.
Cobb J, considering the relevant circumstances, concluded that it was not in AI’s best interests to receive dialysis and the palliative regime as detailed in the Trust’s care plan was lawful and in his best interests.
Read judgment here
RD (anorexia : compulsory treatment)  EWCOP 35
Court of Protection and the inherent jurisdiction of the High Court: Moor J
RD, was 37-years-old and had, since the age of 13, suffered from an extremely serious and debilitating condition, namely anorexia nervosa. The court was tasked with determining if it was in RD’s best interests to receive compulsory treatment for the disorder. It was not disputed that RD lacked the mental capacity to make the relevant decisions.
Moor J heard that numerous previous attempts at providing RD with treatment for the disorder had not been successful and any weight gained during her stays in hospital was “lost almost immediately following her discharge.”
The judge determined that it was not in RD’s best interests to continue receiving compulsory treatment. The “cycle of compulsory admissions to hospital has been distressing to her” and “have achieved very little in the sense that, whilst historically they did improve her BMI to a certain extent, it was achieved under compulsion and probably after causing her distress, discomfort and psychological trauma.”
Moor J concluded that compulsory treatment is not in RD’s best interests and, despite the possible grave consequences that could arise if no treatment was provided, the declarations sought on behalf of the Applicant Trust were made.
Read judgment here
YC, Re  EWCOP 34
Court of Protection: HHJ Hilder
HHJ Hilder was dealing with “how supervisory bodies should evidence their scrutiny of requests for authorisation of deprivation of liberty”. A standard authorisation had been made in respect of YC’s living arrangements at FC Care Home and was purportedly granted by The City of Westminster on 16th June 2020. YC’s representatives were contending that the “authorisation was invalid because of errors in one section of Form 5, which is the written authorisation.” The argument was dismissed in the first instance but came before HHJ Hilder on appeal.
It was common ground between the parties that Form 5 fully and accurately set out the required matters in respect of YC. The concerns focused on the fact that “nineteen out of twenty-five references to the subject of the authorisation” referred to a third-party, Ms Hull. YC’s representatives argued that the “repeated references to Ms Hull indicate a lack of adequate scrutiny and call into question the validity of the decision made by the supervisory body.” The Respondent, The City of Westminster, “considers that the standard authorisation was validly granted on 16th June 2020, and the amended version merely corrected insignificant slips in the paperwork.”
After hearing submissions, HHJ Hilder concluded that “all the underlying assessments were properly completed, without substantive flaw” and that the initial authorisation was a lawful one. However, the judge stressed that: “Nothing in this decision should be taken as undermining the seriousness of the requirements for proper scrutiny by supervisory bodies when considering granting standard authorisations. The errors in this case should not have happened. Rather, it is to be hoped that out of poor practice, the constructive engagement of both parties in this matter can point the way to better practice in the future.”
In an effort to prevent future errors of this nature, HHJ Hilder endorsed the following “workable and appropriate” approach when dealing with the assessment process:
“a. Firstly, the person granting the authorisation should carefully check that all details on Form 5 accurately reflect the other DOLS forms and relate to the particular P;
b. The Form 5 should be checked for accuracy by another member of the DOLS authorisation team of the supervisory body;
c. Form 5 should be provided to the RPR with a covering letter requesting that the RPR carefully checks that the forms, and all the information in them accurately relates to the relevant person;
d. An express requirement for the RPR to confirm accuracy to the supervisory body would be disproportionate but the RPR could do so.”
Read judgment here
A Mental Health Trust v (1) ER (2) An NHS Foundation Trust  EWCOP 32
Court of Protection: Lieven J
This case concerned ER, a 49 year old woman with anorexia nervosa and physical health difficulties including terminal renal failure. The court was asked to determine whether ER had capacity to conduct the proceedings and to make decisions about treatment for her anorexia, and if she lacked capacity, what treatment was in her best interests.
Both the applicant Mental Health Trust and the Official Solicitor agreed that ER lacked litigation and subject-matter capacity. They further agreed that ER should not be forced to accept treatment for her anorexia which she did not wish for, including admission to a psychiatric hospital or specialist eating disorder unit.
Lieven J, having spoken to ER prior to the hearing, found her to be articulate, clear in her views and insightful as to her condition. Lieven J being concerned that there was evidence to suggest that ER may in fact have litigation and subject-matter capacity, she directed Dr Cahill, the consultant psychiatrist who had assessed ER’s capacity, to give oral evidence.
Lieven J commented that whilst the issue of capacity may be thought of as academic in circumstances where the parties were in agreement, and whilst it might be strongly in ER’s interests to be found to lack capacity in order to allow the Court of Protection continued oversight of the case, “capacity and autonomy are such important principles, that lack of capacity cannot be assumed for the sake of expediency”.
Ultimately, and with “considerable reluctance”, Lieven J found that ER lacked litigation and subject-matter capacity. Lieven J placed weight on ER’s treating consultant psychiatrist’s long experience of ER and her disordered thinking, and Dr Cahill’s long and considerable experience of treating patients with anorexia, along with other factors.
Turning then to best interests, Lieven J accepted that it was not in ER’s best interests to be forced to accept treatment for her anorexia. Lieven J held that it would be in ER’s best interests to be given more support in the community, and potentially to move to a supported living placement. As such, she gave directions to add the local authority and CCG as parties to the proceedings, and for them to file amended proposals as to ER’s care and support package.
Read judgment here
SS (by her ALR) v (1) London Borough of Richmond Upon Thames (2) South West London Clinical Commissioning Group  EWCOP 31
Court of Protection: Hayden J
In this case, the court was asked to determine whether it was in SS’s best interests to have the Covid-19 vaccination. This case was novel in as much as the objections to the vaccine arose from SS herself, whereas in previously reported cases the objections have arisen from family members (see for example SD v Royal Borough of Kensington and Chelsea  EWCOP 14 and E (Vaccine)  EWCOP 7).
SS was an 86-year-old woman, residing in a care home. She had a diagnosis of dementia, and it was agreed between the parties that she lacked the capacity to make a decision about whether to have the Covid-19 vaccination.
SS was almost entirely non-compliant with any attempted medical intervention in the care home, and it was anticipated that she would physically resist any attempt to administer the Covid-19 vaccination. Further, there was substantial material from which to conclude that SS, if capacitous, would most likely have declined it.
Hayden J noted that a determination of best interests in this context requires an evaluation of welfare in the broader sense, not merely confined to the epidemiological. It would not be in SS’s best interests to persuade her to have the vaccine by pretending that her (deceased) father had requested her to do so. This would compromise her dignity and suborn her autonomy. Further, it would not be in SS’s best interests for the vaccination to be administered by force (via the use of sedation and restraint). This would risk dismantling the tentative trust that had been established between SS and the care home staff.
Read judgment here
A NHS Foundation Trust v An Expectant Mother  EWCOP 33
Court of Protection: Holman J
This case concerned a 21-year-old pregnant woman, referred to in the judgment as “the mother”, who suffered from severe agoraphobia. She wished for a home birth, and the applicant NHS Trusts were concerned that she may not be able to bring herself to travel to hospital, even if it became medically imperative. As such, they sought the court’s approval for a plan to transport the mother to hospital to give birth in a planned way, before she went into spontaneous labour.
It was agreed between the parties that the mother lacked capacity to make decisions about the location of the delivery of her baby; her agoraphobia rendered her unable to weigh and process relevant considerations. Due to the longstanding and deep-seated nature of her agoraphobia, there was no prospect of the mother’s capacity improving prior to the EDD. A best interests decision was therefore required.
Holman J emphasised at the outset that this case was not about the advantage or disadvantages of hospital birth or home birth, “upon which capacitous women may have different views and about which a capacitous expectant mother normally has autonomous and complete freedom of choice”. However, the nub of this case was the potential difficulty of transferring the mother to hospital in the event of a medical emergency.
Holman J considered the potential risks to the mother and baby of a home birth, along with the views of the mother, and those of the partner and grandmother (whose preference was for a hospital birth if it could be achieved). It was agreed between the parties and endorsed by Holman J that it would be in the overall best interests of the mother and her baby for her to be transferred to hospital, to give birth in a planned way, either via induction or Caesarean section.
It was agreed that it was in the best interests of the mother to be sedated if necessary to help her cope with the transfer to hospital. There remained a disagreement as to the extent of additional force or restraint which could lawfully be used on a pre-planned transfer and admission, where there was no medical emergency. The Official Solicitor agreed that force and restraint could be used if necessary in the event of a medical emergency, but that it was not otherwise “justifiable or proportionate to use force or restraint for a pre-planned admission, however desirable such an admission might otherwise be”.
The medical evidence was that the use of force may have a damaging psychological effect on the mother. Further, it was acknowledged by Holman J that the conveyance plan was an “unattractive scenario and, on the face of it, if resorted to, a severe infringement of the mother’s personal autonomy and liberty”. Weighed against that was the “known, if small, risk that, if a pre-planned birth cannot be achieved, some acute emergency may … arise in the home from which the mother cannot be rescued before some catastrophe occurs to either her or her baby”. On balance, Holman J was satisfied that it was in the mother’s best interests for force and restraint to be used if necessary to transport her to hospital.
It is recorded in a postscript to the judgment that the mother went into spontaneous labour at home. She contacted the hospital and travelled there with the support of her partner and mother, and the community midwife, no restraint being required. At hospital, she safely delivered a healthy baby boy.
Read judgment here
Re DY  EWCOP 28
Court of Protection: Knowles J
This case concerned DY, an 18-year-old woman diagnosed with two chromosomal duplicities, fetal alcohol spectrum disorder, and a moderate learning disability. She had also been diagnosed with developmental trauma disorder or complex post-traumatic stress disorder. DY had previously been a looked-after child, and the local authority had ongoing responsibility for her adult care services. DY was described as being a vulnerable person, as a consequence of her learning disability, disrupted attachment and traumatic childhood.
It was not in dispute that DY lacked capacity to conduct the proceedings, and to make decisions about care, contact, social media use and her finances. The issue before the court was whether DY had capacity to decide to engage in sexual relations.
The local authority’s position was that “when unsettled or distressed, DY may be unable to make a clear and rational decision in relation to sexual relations but, when settled or in a familiar situation or surrounding, then DY was able to make a capacitous decision”. The Official Solicitor’s view was that DY had capacity to decide to engage in sexual relations, contrary to the report of Dr Camden Smith, who “may have set the bar too high in her analysis of DY’s understanding of the distinction between consenting to sexual relations within and outside a relationship”.
As such, the difference between the parties’ positions was whether DY had capacity to decide to engage in sexual relations in circumstances where she was unsettled or distressed. The local authority sought a prospective declaration that she lacked capacity in those circumstances, or alternatively, a declaration in identical or similar terms pursuant to the inherent jurisdiction. The Official Solicitor submitted that the local authority’s approach was wrong in principle and on the facts, because (a) the court was required to assess capacity on a general and non-specific basis; (b) the evidence before the court could not rebut the statutory presumption that DY had capacity on that basis; and (c) any concerns about her vulnerability or ability to assess risk could and should be addressed through provision of support and best interest decisions on care and contact.
Knowles J agreed with the Official Solicitor. As to the workability of the local authority’s proposal, Knowles J noted that there were no defined standards by which DY’s level of distress or unsettledness could be judged to determine whether or not she had capacity to engage in sexual relations. On each occasion that DY appeared to be distressed or unsettled, and was proposing to engage in sexual relations, “the prospective declaration sought would require an assessment of whether DY was sufficiently distressed or unsettled so as to have lost capacity to engage in sexual relations. That would give wide discretion to individual professionals without any check to ensure that DY’s autonomy was respected, and that decisions were not being driven by the desire to protect her”.
Knowles J held that DY had capacity to decide to engage in sexual relations on a general non-specific basis. The local authority’s concerns about risk of abuse and exploitation could be addressed through an appropriate package of care and contact arrangements, decided in DY’s best interests.
Read judgment here
Re TS (Pacemaker)  EWCOP 41
Court of Protection: Peel J
This application was brought jointly by a Hospital Trust and Mental Health Trust, for declarations that (i) TS lacked capacity to make decisions regarding the proposed fitting of a pacemaker for his heart block, and (ii) it was in TS’s best interests for a pacemaker to be fitted. The Trusts also sought a deprivation of liberty order authorising such minimal restraint and use of force as may be required to carry out the proposed procedure.
TS, an 81-year-old man, has a delusional disorder, and was at the time of the hearing detained under s.3 Mental Health Act 1983. Whilst detained, he experienced an episode of chest pain, and was diagnosed with a heart block. A heart block presents a serious risk of cardiac problems, including sudden death. The standard treatment is to have a pacemaker fitted. This was described as a straightforward procedure, taking about one hour, which could be done under local anaesthetic.
TS experienced paranoid beliefs that his heart problem was caused by the council and police torturing him, and refused to have the pacemaker fitted until they desisted. In a “Catch 22” situation, unless TS received antipsychotic medication, the delusional disorder would not improve and he would not regain capacity. However, he could not receive the antipsychotic medication until the pacemaker was fitted, due to his heart block.
There was no dispute that TS lacked capacity to make the relevant decision. In terms of best interests, Peel J took account of the following factors:
(1) TS’s wishes and feelings are not based on an objection to surgery in principle, but a delusional belief that he would agree to a pacemaker after the persecution ended. Given that his wishes are not rational, sensible or pragmatically capable of sensible implementation, Peel J did not give them predominant weight;
(2) The fitting of the pacemaker would bring about immediate and substantial benefits to TS’s physical health;
(3) The procedure itself was standard and low risk;
(4) Whilst there may be a risk to TS’s mental health of the procedure being carried out against his will, future treatment with antipsychotic medication would ameliorate the consequences;
(5) In general terms of his age, TS was in reasonably good health;
(6) The fitting of the pacemaker would allow TS to receive antipsychotic medication, which would improve his quality of life;
(7) TS had previously consented to previous medical procedures, including angioplasty, at a time when he was capacitous;
(8) TS was experiencing a much-reduced quality of life whilst detained under s.3 Mental Health Act. If the pacemaker is fitted, there would be every possibility that he would be able to go home.
For these reasons, Peel J described it as a “clear-cut case” where TS’s best interests were served by the applications being granted.
Read judgment here
University Hospitals Dorset NHS Foundation Trust v Miss K  EWCOP 40
Court of Protection: Lieven J
Miss K, a woman in her late thirties with a long history of mental illness and a diagnosis of schizophrenia, was 37 weeks pregnant when the hospital trusts responsible for her obstetric and mental health care made applications for declarations that it was in her best interests to undergo an elective caesarean section the following morning.
The urgent application was heard by Lieven J who voiced her displeasure at the delay in bringing the application to the court and highlighting the fact that late applications of this nature will burden the Court and the Official Solicitor. The OS, on behalf of Miss K, was instructed only on the day of the application, making it “impossible” for her to take a “sensible view of the case”. The Judge noted that it had been known for around a week that Miss K would lose capacity to give consent for the treatment proposed and an application should have been made “significantly earlier than today.”
The Court had limited information concerning Miss K’s medical history and family relationships. Lieven J was also concerned that Miss K appeared not to have been made aware of the fact that plans had been made for Miss K’s baby to be taken into care immediately after the birth.
Lieven J did find that the proposed planned caesarean section the following morning was in Miss K’s best interests. Miss K had earlier expressed a willingness to have a planned caesarean section and had demonstrated concern at the safety of the baby. The Court also determined that a vaginal birth would be “highly risky” to both mother and baby because of her inability to “physically and mentally cooperate” with the process.
Read judgment here