Court of Protection Newsletter #1012.11.18
Welcome to the November issue of Spire Barristers’ Court of Protection Newsletter covering October's news from around the web, practice updates and case reviews in Court of Protection and Public Law matters: edited by Jacqueline Thomas and Ella Anderson. Case updates and news items by Barbara Green.
This month includes updates on news, reports, guidance and case law and a brief focus on the progression of the Mental Capacity Amendment Bill.
Thanks for reading.
Vulnerable young woman said to have had sex with a number of men as part of a COP approved 24 hour care packageRead More
Issue of the limits for a judge in persuading a public body to provide services and/or resourcesRead More
17year old severely autistic woman detained under the MHA has been held in seclusion for 2 yearsRead More
More DOLS cases were completed in 2017-18 compared to the previous year but there is a growing backlog of casesRead More
Proposals to change the mental health tribunal rules to abolish Pre-Hearing Examinations and for judges to make more decisions on the papers without an oral hearing have been abandonedRead More
Article: Mental Capacity (Amendment Bill)
Barbara Green provides a brief focus on the proposals for a new scheme of Liberty Protection Safeguards to replace the current Deprivation of Liberty Safeguards. The Bill amends the Mental Capacity Act (MCA) 2005 by replacing Schedule A1 to the MCA (“DoLS”) with Schedule AA1 that provides for a new scheme for authorisation of deprivation of liberty.
Reports and Guidance Update
CQC report (updated 11 Oct 2018) ‘The state of health care and adult social care in England 2017/18’ [PDF].
FGM guidance (updated 17 Oct 2018) Statutory guidance to which public bodies must have regard [PDF].
NICE guidance on ‘Decision making and Mental Capacity’
Ordinary Residence: ADASS guide to Local Authority responsibilities under the Care Act and the Mental Health Act
Case Law Update
Re T (A Child)  EWCA Civ 2136
President’s decision in relation to the relevance of the child’s consent to arrangements amounting to a deprivation of liberty, specifically when it is the equivalent of secure accommodation. The inherent jurisdiction is described as being increasingly used because of a lack of secure placements approved by the Secretary of State. This results in two parallel processes for authorisation: s.25 of the Children Act 1989 (‘CA’) and the inherent jurisdiction. The young person (now 16) was considered to be Gillick competent and consented to the proposed care regime. If the placement was in a unit registered as a secure children’s home then the restrictions placed upon her would have required authorisation under CA 1989 s.25.
After reviewing the Strasbourg and domestic authorities, the President held that a lack of valid consent was not a jurisdictional pre-requisite for making a statutory secure accommodation order, or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person’s liberty.
This decision is significant for the awaited decisions by the Supreme Court in:
- D (A Child) whether the confinement of D, aged 16 years, who lacked capacity or competence to make decisions about his residence and care, amounted to a deprivation of his liberty where his parents were consenting to the confinement.
- MM v Secretary of State for Justice regarding consent in an appeal for conditional discharge.
London Borough of Hounslow v A Father & Mother (Costs in the Court of Protection – Disproportionate litigation)  EWCOP 23
London Borough of Hounslow applied to be appointed the property and affairs deputy for a young man. This action had arisen out of financial safeguarding concerns relating to the management of his finances by his parents.
The P’s father was the DWP appointee responsible for administering the young man’s state benefits. The P’s mother was separated from the father and did not live with them. The LA raised a safeguarding enquiry due to an allegation of financial abuse against the mother who was alleged to be mismanaging the son’s benefits.
The father was legally represented, the mother acted as a litigant in person.
The LA eventually withdrew its application without oral evidence being heard after the mother produced the relevant bank statements. But, by then, the LA’s costs had risen to £15,000 and the father’s costs to £50,000, which, in the Judge’s view, did not adhere to the costs provisions of the Court of Protection Rules 2007 and 2017. The court said that the litigation was conducted disproportionately by both sides (the LA and the father’s solicitors) and there was a failure to focus on the simple central issue of whether the bank statements into which the benefits were paid evidenced any misuse of funds. Costs were awarded against the LA. The LA was ordered to pay 90% of the father’s costs and was invited to agree an ex gratia payment with the mother.
DJ Eldergill commented:
“[t]he intention of the [Court of Protection Rules] is that a litigant in person is entitled to be reimbursed for their reasonable expenses but is not entitled to a fee or to remuneration.
…The rules also need to be reviewed and revised so that the court can award a litigant in person costs in a case such as this.”
Manchester City Council Legal Services v LC & Anor  EWHC 2849 (Fam) (24 October 2018)
Directions hearing regarding vulnerable young woman said to have had sex with a number of men as part of a COP approved 24 hour care package (see news above)
Mr Justice Hayden, sitting in the High Court of Justice Family Division, stated:
- “There has been concern, if I may say so, finally and by way of postscript, that LC simply does not have capacity to develop her understanding of the consequences of her bad decision-making in relation to sexual partners. Certainly, the indicators to date have not been propitious. But she is only 23. The proposal that a female clinical psychologist take on the work is a very sensible one. Moreover, as I interpret the obligations on the State imposed by the MCA, there is an ongoing obligation actively to promote this capacity. That said, I have no doubt that all involved throughout have been trying to do exactly that. These are intensely difficult issues, properly subject to public scrutiny, and it is right that they should be heard in public. It is now general practice that hearings in the Court of Protection are held in public. The Court of Protection, following the success of the Transparency Pilot, now sits ordinarily in public and without any application being made. Where, as here, reporting restrictions are imposed, pursuant to COPR Rule 4.3 (2), it is entirely limited to protecting LC rather than conferring anonymity.
- There has been a legal argument as to whether the MCA, by collateral declarations, is apt to limit the autonomy of individuals in spheres where they are capacitous. In simple terms, whether the measures put in place to protect LC in those areas where she lacks capacity may legitimately impinge on her autonomy in those areas where her capacity is established. It has been canvassed that if the court is to restrict LC either in part or, potentially, fully in such a sphere (i.e. where she has capacity), the court ought only to consider such measures under the parens patriae jurisdiction of the High Court. Happily, it is unnecessary for me to resolve that issue today, indeed, it may not arise. It does require to be said that whenever a court has to curtail the liberty of an individual whether capacitous or not, the burden is acute and the responsibility grave. In future, it seems to me, where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection. In fact, as I have reviewed the authorities, I note that, historically, these cases have all been considered in the High Court.
- Both the Family Division and the Court of Protection has had, over the past few years, to feel its way to a more transparent process and to draw back from the overly paternalistic protection of the vulnerable that has arguably characterised this jurisdiction in the past. In that process, the press by and large, if not universally, have shown a careful adherence to their Codes of Practice. Those rules impose strict requirements relating to the vulnerable and children. There is obvious good reason for this. So, I would ask the press here to remember that there is an embarrassed, distressed 23 year old woman at the centre of this case, who is entitled to the highest standard of professionalism from all of us, which includes the press.