Court of Protection Newsletter #0305.10.17

Practice Update

OPG: Updated Safeguarding Policy

OPG Annual Report and Accounts: 2016 to 2017

OPG Practice Note: Court of Protection Visitors and the Release of their Reports 

OPG Update: Deputy Annual Report – Accounting for your Actions

OPG Update: Public Authority Deputyship Responsibilities

OPG Update: Surety Bonds

Case Reviews

The Public Guardian v Matrix Deputies Ltd & Anor [2017] EWCOP 14

This application by the OPG concerned 44 individuals whose property and affairs were managed by Matrix Deputies Ltd, or were the subject of an application for Matrix Deputies to be appointed. The application sought the discharge of existing appointments and the refusal of the pending applications, with a local authority or panel deputy to be appointed in place of Matrix Deputies. Over the course of the proceedings, Matrix Deputies along with two individuals who worked for the organisation, DW and OM, all conceded the applications. There were no findings of fact made and the admissions made by Matrix Deputies in respect of their conduct were limited.  It was agreed between the OPG and Matrix Deputies that each party should bear their own costs and would not seek to recover their costs from the estates of any of the protected parties. In light of the conduct of Matrix Deputies, the judge ordered that the local authority should recover its costs on an indemnity basis from them.

Full judgment

Re D (Medical Treatment) [2017] EWCOP 15

These proceedings concerned D, a soldier who had suffered a traumatic brain injury following an assault in a bar in 2013. D’s mother made the application to court for an order that it was in D’s best interests to receive stem cell treatment in Serbia. The respondent, the Ministry of Defence, did not support the application, however took a neutral stance to allow the court to determine the issues. D was able to voice his wishes and feelings that he wished to undergo the therapy, however the OS considered that it was not in his best interests due to the unproven and risky nature of the procedure. Baker J was clear that D had a very strong wish to undergo the treatment and that they were his own view, not those of his mother. The court heard evidence from two experts regarding the proposed treatment. Baker J concluded that if D was denied the opportunity to have stem cell treatment on the grounds that this is the safer option as result of the risky nature of the procedure, he considered there was a strong argument that his safety may have been bought at too high a price in terms of his happiness and emotional welfare. The court provisionally consented to D travelling to receive the treatment, subject to a number of steps that needed to be taken before final approval would be given. The judgment helpfully sets out the legal framework and case law surrounding best interests decisions.

Full judgment 

JMcG v Devon Partnership NHS Trust [2017] UKUT 348 (AAC)

This appeal concerned whether the First Tier Tribunal had erred in law in its belief that it could not defer the discharge of a detained patient beyond the date of the order authorising detention. The appellant criticised the tribunal for refusing to defer his discharge and for failing to give adequate reasons. The appeal was dismissed on the grounds that the Tribunal’s reasons were adequate and did not assert that a deferred discharge could not exceed the date of the order authorising detention. The judge did comment that, strictly obiter, he considered that a deferred discharge cannot exceed the date the date of the order authorising detention.

Full judgment

M v A Hospital [2017] EWCOP 19

This judgment from Mr Justice Peter Jackson makes clear his view that there is no legal obligation to bring cases concerning withdrawal of artificial nutrition and hydration to court where there is no dispute. The proceedings concerned M, a lady with Huntingdon’s disease which had left her in a minimally conscious state. A declaration was sought ‘if required’ that it was in M’s best interests not to continue to receive CANH. On the facts of this particular case, Mr Justice Jackson commented that he did not consider it to have been a legal requirement to bring this case to court. Where a decision is taken to withdrawn CANH in accordance with professional guidance, full consultation with the family and acting in accordance with the MCA, clinicians will benefit from the protection of s.5. The court is available for cases where there is disagreement. He stressed that each case must be considered on a fact specific basis and if withdrawal of CANH was being considered, there should be no hesitation in approaching the Court where it seemed right to do so.

Full judgment

SCC v MSA & Anor [2017] EWCOP 18

The issue in these proceedings concerned whether P’s mother could or should act as his Rule 3A representative. P’s care package was delivered within his family home and was commissioned by the CCG. The OS considered that it would be ‘manifestly inappropriate’ for P’s representative in these proceedings to be the person responsible for implementing the restrictive care arrangements that constituted a deprivation of his liberty. DJ Bellamy did not consider that it was necessary to go as far as to say that it would manifestly inappropriate for P’s mother to act, but he stated that must be right that where there is any possibility (whether perceived or actual) that a conflict of interest may arise, the appointment of a representative or litigation friend must be closely scrutinised by the court. In this case P’s mother was unwilling to act in any event, so the OS continued to act as litigation friend.

Full judgment

R (CXF) v Central Bedfordshire Council [2017] EWHC 2311 (Admin)

These judicial review proceedings concerned the question of whether the local authority and/or CCG were required to cover the costs of the Claimant’s mother visiting him under s.117 aftercare. The Claimant is detained under s.3 MHA 1983, and the journey for his mother to visit is substantial. Until the Claimant’s 18th birthday, the costs of this travel were met by the local authority under s.17 of the Children Act 1989. His mother visits weekly to accompany the Claimant on his s.17 leave of absences from the hospital. The therapeutic benefit of these visits is not in dispute. The key issue was whether s.117 was triggered when the Claimant was granted a leave of absence. The judge concluded that it was not on the grounds that the Claimant remains in detention and has not ‘left hospital’ when given permission to leave the grounds for an escorted trip. The claim was dismissed.

Full judgment