Court of Protection Newsletter #0130.07.17

From the 31st July, 37 Park Square Chambers will evolve to become ‘Spire Barristers’. We will become the only specialist Family & Public Law Chambers, both on Circuit and in the North of England. As Spire Barristers, we will continue to follow a dynamic and forward-thinking approach and offer a service that is both highly specialised and personal, to all of our clients, in an increasingly demanding environment.

Further information on how you can continue to receive the new Court of Protection Update will follow shortly. In the meantime, you can email us to sign-up and give us any feedback.

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Practice Update

Court of Protection Quarterly Statistics: January to March 2017

There has been a 43% increase in deprivation of liberty applications; 969 applications were made during this quarter. The number of deprivation of liberty orders made nearly doubled over the quarter from 292 to 547.

There has been a 31% increase in Lasting Powers of Attorney (LPAs) received by the Office of the Public Guardian, 186,169 in total in this quarter.

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Court of Protection introduces electronic seals

In a letter from the Ministry of Justice, all non-financial COP orders will be endorsed with an electronic seal from 21st July 2017.

Alex Ruck Keene’s talk on the MCA and the big issues for the next 10 years

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Case Law Update

NHS Foundation Trust v QZ [2017] EWCOP 11 (06 June 2017)

QZ is a woman in her 60s with a long standing diagnosis of chronic, treatment resistant, paranoid schizophrenia. The application was brought by the NHS Trust following concerns about post-menopausal bleeding. The Trust sought an order permitting a hysteroscopy and endometrial biopsy under general anaesthetic with further permission to remove any abnormal pathology which might be cancerous.

There were concerns raised that the risks to QZ’s mental health may outweigh the benefit of investigating the possibility of cancer. QZ’s treating psychiatrist was more optimistic about the likelihood of any distress being transient than Dr O’Donovan, the independent expert.

Hayden J did not consider a balance sheet appropriate in this case given that different factors weighed disproportionately. He considered that to undertake the treatment would be “not fighting QZ, but fighting on her behalf” and authorised the treatment in the terms of the draft order.

Full judgment


Djaba v West London MH Trust and others [2017] EWCA Civ 436 (Court of Appeal (Arden, Sales, and McCombe LJJ))

This case was an appeal of the Upper Tribunal’s decision not to set aside the decision of the First Tier Tribunal that the appellant should not be discharged from liability to be detained for medical treatment. The appeal concerned whether the FTT was required to undertake a proportionality assessment, pursuant to Articles 5 and/or 8 of the ECHR taking into account the conditions of the appellant’s detention.

The appeal was dismissed on the grounds that the FTT did not have the jurisdiction to carry out an assessment beyond that set out in ss72-73 of the Mental Health Act 1983. Further challenge to the lawfulness of the appellant’s conditions of detention under ECHR would need to be brought in the civil courts.

Full judgment


AA v London Borough of Haringey: [2017] UKUT 241 (AAC)

This appeal was allowed and referred back to the First Tier Tribunal (Health, Education and Social Care Chamber) for a fresh hearing. The appeal concerned a child, referred to as ‘Adam’, who has a diagnosis of autistic spectrum disorder and language, emotional, behavioural and sensory difficulties. The dispute between the parties concerned the reference to Adam’s transport difficulties in his EHC Plan and what type of transport the local authority would provide. The FTT had determined that it had no jurisdiction to consider transport matters as school transport is neither a special educational need or special educational provision.

The judge said he was unaware of any authority that states as a matter of law that transport needs can never constitute a special educational need and such measures to address these can never be named in a plan and therefore allowed the appeal on the basis that FTT should have listened to the arguments at first instance regarding this issue.

Full judgment