Court of Protection Newsletter #0414.11.17

Practice Update

PM announces plan for an independent review of the Mental Health Act

CQC publish their annual report into the state of health care and adult social care in England

Family Court Statistics: April – June 2017 – Upward trend in DoLS and LPA applications continues with number of MCA applications remaining steady

House of Commons briefing published outlining Law Commission’s recommendations for replacing the Deprivation of Liberty Safeguards

Case Law Update

Sentencing Remarks: Care Quality Commission v Southern Health NHS Foundation Trust

This case was brought by the CQC following failings in the care provided to AB, which led to injuries that have proved to be life-changing not only for him but for those who love and care for him. AB was admitted as a patient to Melbury Lodge Psychiatric Unit. On a previous admission he managed to get on a low roof in an attempt to abscond. This happened again and AB tragically fell, sustaining injuries. There had been six other patients who had accessed the roof between 2010-2014. Various inspections and recommendations were not followed through. A further three patients accessed the roof after AB’s accident. The Trust entered an immediate guilty plea and the court accepted that the Trust had now taken appropriate steps to put in place governance and management procedures to avoid reoccurrence.

Full judgment

DL-H v West London MH Trust [2017] UKUT 387 (AAC)

This case is an appeal from a First Tier Mental Health Tribunal which concluded DL-H remained liable to be detained. The Upper Tribunal concluded that when a tribunal has to decide whether a patient is manifesting religious beliefs or mental disorder, it is entitled to take account of evidence from both religious and medical experts. It further concluded that a tribunal is entitled to use its own expertise to make a different diagnosis from those of the medical witnesses, provided it allows the parties a chance to make submissions and explains its decision.

Full judgment

R (on the application of Noel Douglas Conway) v The Secretary of State for Justice [2017] EWHC 2447 (Admin)

The case before the court concerned the provision of assistance to a person with motor-neurone disease who wished to commit suicide. The court declined to interfere with the prohibition on assisting suicide in s.2 of the Suicide Act 1961. It was considered that a good evidential case has been made available to Parliament, particularly via the BMA’s survey and report and the BGS’s paper, which supports the need for a clear rule prohibiting provision of assistance for suicide in order to safeguard and reinforce the relationship of trust between doctor and patient. It is also necessary to protect the weak and the vulnerable. The court concluded that s.2 was compatible with Mr Conway’s rights under Article 8 ECHR and dismissed his application for a declaration of incompatibility.

Full judgment

LB Wandsworth v M & Ors [2017] EWHC 2435 (Fam) (Hayden J)

These proceedings concerned three children, aged 13, 15 and 17. The eldest child (J) is due to turn 18 in December 2017. He had been removed from his mother’s care under a Care Order as a result of being brought up by their mother in a narcissistic cult, in extremely isolated conditions. He has been living at a residential unit, with no contact with his mother, for nearly two years. The issue concerning Hayden J was how to maintain his safety and residence at the unit beyond his 18th birthday, following J’s expressed wish to return to live with his mother and an older brother, despite not wishing to see her. The local authority consequently put evidence from the social worker before the court as to J’s capacity in an attempt to commence Court of Protection proceedings. Hayden J expressed significant concern about the quality of the assessment and considered whether it even met the required threshold for an interim declaration under s.48 of the MCA, which he concluded it did not. Hayden J therefore exercised his powers under the inherent jurisdiction in preventing J from residing at his mother’s home, pending the outcome of a more detailed assessment of his capacity.

This case includes helpful words in respect of the test for interim declarations and the use of the inherent jurisdiction.

Full judgment

A Hospital Trust & Otrs v Miss V & Otrs [2017] EWCOP 20

Ella Anderson of Spire Barristers represented the local authority in an application by a Hospital Trust for declarations and orders that it was in Miss V’s best interests to receive non-thereupeutic contraception. Miss V was a vulnerable young woman with a significant learning disability who had become pregnant. It was accepted by all parties that she lacked capacity to consent to sexual relations or to make decisions about contraception. Miss V struggled with the experience and interventions associated with pregnancy and was significantly traumatised by the removal of the baby at birth.

The Hospital Trust and Local Authority contended that in addition to the safeguarding protection plan which had been put in place, in the circumstances of this particular case an ‘added layer of protection’ by way of non-invasive, reversible contraception should also be utilised. The application was opposed by the Official Solicitor on Miss V’s behalf and also by Miss V’s mother. Cobb J found that “The safeguarding plan is designed to reduce the risk of sexual exploitation particularly outside of the home; contraception is proposed to reduce the risk of pregnancy in the event that the plan fails.  If this additional safeguard can be introduced without undue side effects, and is a safeguard which Miss V is not unwilling to accept, then the best interests balance tilts in favour of its use.

The Judge was clear that his decision was taken in the context of Miss V’s unique situation and ‘wholly rejected’ the submission on behalf of the Official Solicitor that by declaring contraception in Miss V’s best interests the court would in one way or another be setting a precedent for all incapacitous and vulnerable women.

Full judgment