Court of Protection Newsletter #0219.09.17

Practice Update

Court Of Protection Transparency Pilot: Case Management s.49 Pilots Extension.

First-Tier Tribunal Health, Education & Social Care Chamber (Mental Health): Enforcement Procedure, Directions And Summonses.

Update: Administrative Court Judicial Review Guide.

Speech by Judge Mark Hinchliffe: Compulsory Mental Health Treatment: When Should Judges Get Involved?


Case Reviews

Re CH [2017] EWCOP 12

This case concerned a 38 year old man, CH, who has Downs Syndrome and an associated learning difficulty. He married his wife, WH, in 2010 and they have lived together in CH’s parents’ home, enjoying normal conjugal relations until March 2015. An assessment was undertaken by a psychologist in 2014 that concluded CH lacked capacity to consent to sexual relationships and WH was advised that she must abstain from sexual intercourse with CH. A course on sex education was recommended “to assist him to achieve the necessary capacity”. However, the local authority did not set up the programme under June 2016. Hedley J recognised that the principle behind this intrusion on the couple’s privacy was entirely lawful and properly motivated, and described it as “part of the inevitable price that must be paid to have a regime of effective safeguarding”. Nevertheless, the delay was actionable and in breach of s.6(1) of the Human Rights Act 1998 and Hedley J endorsed an award of £10,000 of damages together with a public apology.

Full judgment


Director of Legal Aid Casework & Ors v Briggs [2017] EWCA Civ 1169

This was an appeal concerning whether the proceedings brought by the respondent were properly brought under s.21A of the MCA 2005. The original proceedings concerned Mr Briggs, who was seriously injured in an RTA and was in a minimally conscious state. Agreement was unable to be reached between the family and the treating team at the hospital as to whether CANH should be withdrawn. The application was framed as to whether it was in Mr Briggs’ best interests to receive life-sustaining treatment and be deprived of his liberty for that purpose. Whilst non-means tested legal aid is available for s.21A applications, it is not for cases concerning serious medical treatment.

It was concluded that the provisions under s.21A were not intended to provide a duplicate route for the court to consider personal welfare and medical treatment where the deprivation of P’s liberty was not the primary matter before the court. Where serious medical treatment is the fundamental issue in an application, it is more properly brought under ss.15-17 of the MCA. Furthermore, in light of the Ferreira judgment, Mr Briggs did not need to be subject a standard authorisation and therefore the only available avenue open for an application as to the withdrawal of CANH should have been via s.16.

Applications under s.21A go to the heart of whether it is in P’s best interests to be a detained person. The circumstances of the detention form part of the picture, including the medical treatment when considering best interests but it is the consideration of whether the detention itself is in P’s best interests that is central to an application under s.21A.

Full judgment


DM v Y City Council [2017] EWCOP 13

This application was brought as a s.21A challenge to a standard authorisation dated 3rd February 2017. The issues surrounded whether it was in DM’s best interests to remain resident at a care home that forbade alcohol when he was an abstinent alcoholic. The capacity evidence was clear that DM did not have the capacity to made decisions on his care/residence or regarding the consumption of alcohol. Furthermore, expert opinion on life expectancy suggested DM would perhaps have a further 3 years if he continued to consume alcohol, rising to 7 years if he remained abstinent. DM’s social worker was clear in his opinion that it would be contrary to DM’s best interests to move to a home where he could consume alcohol. Bodey J considered the decision to be a finely balanced one, and attached significant weight to DM’s wishes and feelings surrounding alcohol. He concluded that it was in DM’s best interests to remain at his current, dry placement due to the relationship he maintained with a fellow resident and the uncertainty that a move would create, just for the purpose of allowing DM to resume drinking. A trial period was rejected on the basis that DM had been abstinent for 5 years and allowing him to resume drinking, to potentially place him back in a dry environment would be “frankly cruel”.

Full judgment


Nahajec v Fowle [2017] EW Misc 11 (CC) (18 July 2017)

The claimant in this case made a claim under the Inheritance (Provision for Family and Dependants) Act 1975 seeking financial provision from the estate of her deceased father. The terms of the will left the entirety of the deceased’s estate to his friend, making no financial provision for his daughter. HHJ Saffman awarded the claimant £30,000 from her father’s estate despite the fact that he made it clear he had disinherited his children. The judge awarded the maintenance on the basis that she wanted to complete a veterinary course and in spite of her having almost no contact with her father for several years before his death in 2015. A further claim was made by the claimant’s half sibling which was settled for £22,000 on the basis that he was unable to work due to ill-health. The remaining half-sibling made no claim.

Full judgment