Court of Protection Newsletter #2602.09.21
Welcome to the latest issue of Spire Barristers’ Public Law Newsletter covering news from around the web, practice updates and case reviews in Court of Protection and Public Law matters.
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The government has withdrawn guidance on practice in relation to the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards (DoLS) during the Covid-19 pandemic.
T (A Child), Re  UKSC 35
The Supreme Court was concerned with the use of the inherent jurisdiction to authorise a local authority to deprive a child of his or her liberty where the statutory criteria for making a secure accommodation order under section 25 of the Children Act 1989 are met, but where the child is not placed in a secure children’s home (either because there is a shortage of placements in secure children’s homes or the child’s needs could not be met in such a placement).
T was a 15-year-old child who was being looked after a local authority. T had been placed in accommodation that was not a registered children’s home. The local authority had applied for an order under the inherent jurisdiction so that T could be lawfully deprived of her liberty. After the breakdown of that placement, the court authorised the local authority to deprive T of liberty in a registered children’s home in England which was not approved for use as secure accommodation. T contended that she consented to the restrictions in place so no order depriving her of her liberty was needed. The judge had made the order because T’s consent was not of an “enduring quality”.
T’s appeal to the Supreme Court was based on the argument that the inherent jurisdiction could not be used to authorise her deprivation of liberty at these types of placements. There was, T argued, a statutory prohibition on the use of the inherent jurisdiction as set out in s100(2)(d) of the Children Act 1989 and as such it would usurp the framework set out in s25 of that Act. T also stated that as she had consented to her deprivation of liberty, it would be against her best interests to make an order authorising her deprivation of liberty. T also claimed that the use of the inherent jurisdiction in the above manner would contravene Article 5 of the ECHR.
The appeal was dismissed. The court stated that all local authorities have a duty to protect and support children in various ways, which would include placing a looked after child in secure accommodation pursuant to s25 of the 1989 Act. The court noted that the current regulations make clear that a children’s home can only be used as secure accommodation if it has been approved for such use by the Secretary of State in England, and in Wales, by the Welsh Ministers. It must also be registered with OFSTED in England and CIW in Wales (any person who carries on or manages a children’s home without being registered is guilty of an offence). The lack of available placements in secure children’s homes has meant that local authorities often seek orders under the inherent jurisdiction to deprive children of their liberty.
The Supreme Court, although describing the inherent jurisdiction of the High Court in relation to children as “the ultimate safety net”, held that the use of the inherent jurisdiction was subject to the constraints as set out in s100 of the 1989 Act. However, the local authority could rely upon making an application pursuant to the inherent jurisdiction in circumstances where it held parental responsibility for a child as a result of a care order being made in its favour. The use of the inherent jurisdiction in circumstances where the local authority could not otherwise keep a child safe from harm was essentially filling an unintended legislative gap.
The Supreme Court also endorsed the Practice Guidance issued by the President of the Family Division, dated 12 November 2019, which sets out the steps that should be taken when a child is placed in unregistered children’s homes in England or unregistered care home services in Wales. As well as this, an order made under the inherent jurisdiction authorising a child being deprived of his/her liberty in an unregistered children’s home does not authorise the commission of a criminal offence nor does it prevent an offence being committed. The Supreme Court concluded that the use of the inherent jurisdiction in the manner as set out in this appeal did not breach Article 5 of the ECHR.
T’s contention that her consent invalidated the need for an order was also dismissed. The risk that “an apparently balanced and free decision made by a child may be quickly revised and/or reversed” meant that an order of the court would be needed. However, any consent on part of the child will form part of the holistic evaluation that a court must consider when addressing a local authority’s application to deprive a child of his/her liberty.
Read judgment here
KM, Re  EWCOP 42
Court of Protection: Keehan J
The applicant NHS Trust sought permission from the Court to withdraw life-sustaining treatment the relevant ‘P’, KM, was receiving.
KM, a 52-year-old man, was admitted to Hospital A on 19 January this year with shortness of breath and pleuritic chest pain. He was transferred to Hospital B on 24 January 2021 where he was receiving treatment. He remained at that hospital ever since that date.
At the time of the application being made, KM;s health had deteriorated to the extent that the treating clinicians understood his condition to be “irrecoverable and irreversible, and that continued treatment would be futile and overly burdensome.” Dr A, a consultant in cardiothoracic intensive care, anaesthesia and ECMO, advised that the “clinical picture did not merit or warrant further CT scans being taken, in particular for the purposes of clinical treatment and that taking a patient from intensive care to a CT scan is a risky procedure for many but would have been an especially risky procedure for KM given the perilous state of his health.”
The application was “very strongly opposed by KM’s wife TM, by his son KWM, and by his brother-in-law KA.” The Judge took “account of the presumption in favour of sustaining life wherever that is possible to do so” and gave “great weight to and…the greatest respect for the wishes and feelings of KM, as best as they can be ascertained, and the wishes and feelings of his family and those who have had care of him.”
The medical evidence that the Court was presented with was overwhelming and conclusive; no other alternative treatment prospects were realistic and withdrawing treatment would allow KM to have a dignified death. The application was granted, and the Court endorsed a plan of palliative care.
Read judgment here
AB v HB & Anor  EWCOP 45
Court of Protection: HHJ Hilder
An application was made for the committal of one of the P’s children (HB) because he had earlier breached court orders within these proceedings. P was a 96-year-old man whose lack of capacity was an issue in the wider proceedings.
The applicant (AB) was one of P’s children who was resident in the USA. P’s 2 other children resided with P in the UK. AB was concerned that P had lost capacity to manage his property and affairs and was being financially exploited.
It was alleged that HB had prevented attempts for P’s capacity to be assessed on at least 7 different occasions despite the court sanctioning such assessment and ordering HB not to hinder the proposed assessment. At the time of the committal hearing, the assessment had been completed. Based on the evidence before it, the court found that HB had “made clear he would not cooperate with an assessment.”
HHJ Hilder opted not to impose a custodial sentence or a fine against HB. Instead, the judge emphasised to HB the need to obey court orders. HHJ concluded that “it is not necessary to impose any custodial sentence, immediate or suspended, and neither is it necessary to impose a fine” because the judge intends “to give Mr HB the opportunity to demonstrate that he has learnt the importance of compliance with court orders.”
Read judgment here
Re CB  EWCOP 43
Court of Protection: Keehan J
This case was brought by CB’s sister, YH, in order to determine where it was in CB’s best interests to reside and receive care. The parties were able to reach a substantial degree of agreement via mediation, and by the time of the hearing before Keehan J, only two outstanding issues remained to be resolved:
(i) whether YH should be appointed as CB’s personal welfare deputy in addition to being her property and affairs deputy; and
(ii) whether the local authority should be ordered to pay YH’s costs.
Application to be made personal welfare deputy
YH had not enjoyed a positive or productive working relationship with the local authority, although this had improved with the appointment of a new social worker. Keehan J held that YH’s purpose in seeking to be appointed as personal welfare deputy was not to seek authority to make decisions on CB’s behalf, but to give YH status and standing in her engagement with the social care and medical professionals involved in CB’s life. It would be an inappropriate and impermissible use of s.16 MCA to grant the application for deputyship on this basis. Accordingly, the application was refused.
YH applied for costs on the basis that the local authority had conducted the litigation unreasonably, which merited a departure from the usual rule of no order for costs pursuant to r.19.5 CoPR. Keehan J noted that there were neither findings of fact made by the court, nor an agreed factual matrix, which arguably demonstrated unreasonable conduct on the part of the local authority. Instead, the facts and evidence relied upon by YH required the court to infer or assume unreasonable conduct on the local authority’s part. As such, Keehan J was not persuaded that the circumstances justified departure from the general rule, and the application was refused.
Read judgment here
London Borough of Southwark v P and Ors  EWCOP 46
Court of Protection: Lieven J
This case involved an application to discharge P’s mother, AA, as a party from Court of Protection proceedings. AA had been discharged as a party by order of Hayden J in November 2020. That decision was set aside on procedural grounds by the Court of Appeal in April 2021 (Re P (Discharge of Party)  EWCA Civ 512), on the basis that AA had been discharged as a party “without notice, without disclosure of any evidence, and without giving any reasons for the decision” (per Baker LJ, para. 51). A further application was subsequently brought before the Court of Protection. By the time of this second application, AA effectively had full knowledge of the relevant evidence, and was able to participate in the hearing through her legal representative.
P is a highly vulnerable 19-year-old woman, with diagnoses of cerebral palsy, atypical anorexia, PTSD and selective mutism. The local authority issued welfare proceedings in the Court of Protection in April 2019. At the first directions hearing, Hayden J joined both P and AA as respondents, and ordered: that P be removed from the family home and placed in a residential unit; that direct contact between P and AA be supervised and limited to once a week; but that indirect contact could continue on an unrestricted basis.
In October 2020, P disclosed that she had been subject to emotional abuse by AA through WhatsApp messages; that AA had been aware of P’s sexual abuse by a male visitor to the family home, contrary to AA’s and P’s previous assertions; and, that P had been physically and sexually abused by AA’s new partner. In a departure from her previously expressed wishes and feelings, P indicated that she no longer wished to return to live with AA, or to have any contact with her.
At the date of the hearing before Lieven J, it remained P’s position that she did not want contact with AA and did not want to live with her. Further, she did not want AA to be a party to proceedings, and would not wish to take any further part in the proceedings if AA were to remain a party. P’s psychotherapist provided a report stating that permitting AA to remain as a party would cause undue stress and emotional harm to P, and would affect her ability to engage successfully in trauma therapy.
Lieven J held that AA should be removed as a party. Firstly, to the extent that Re F (A Child Adjournment)  EWCA Civ 469 proposed that the welfare paramountcy principle did not apply to case management decisions under the Children Act 1989, that approach did not translate across to the statutory scheme under the Mental Capacity Act 2005. The whole purpose of the latter scheme was to protect and promote the best interests of P (see for example para. 38, KK v Leeds City Council  EWCOP 64). Secondly, notwithstanding the Court of Appeal’s earlier decision that AA had Article 8 rights in respect of P, the position had evolved; P had consistently stated over a significant period of time that she did not want contact or an ongoing relationship with AA, and had not lived with AA for two years. As such, AA’s Article 8 rights were seriously diminished. Finally, in respect of any alleged injustice to AA, it was open to her to file evidence in the proceedings if she wished.
Read judgment here
A Local Authority v SE and Ors  EWCOP 44
Court of Protection: Lieven J
This case involved concurrent applications in the Court of Protection and under the Mental Health Act 1983 (“MHA”). Specifically, the local authority applied to the court: for welfare decisions regarding SE’s residence, care and contact with her family; for continuation of the injunctions against SE’s father, ME, restraining him from removing SE from her placement, or encouraging anyone else to do so; and, to displace ME as SE’s nearest relative pursuant to s.29(3)(e) MHA, on the basis that he is not a suitable person to act as such. The court was also invited to determine disputed facts relating largely to ME’s behaviour towards SE and her care team.
SE is an 18-year-old woman, with a diagnosis of reactive attachment disorder. SE was known to social services from an early age. She was made subject of a full care order on the basis of being at risk of neglect, physical and emotional abuse by her family. Sadly, she experienced a number of failed placements throughout her childhood, including at one point a secure children’s home under s.25 Children Act 1989. From June 2016 to August 2020, she was detained under s.3 MHA, and upon her discharge, she moved into supported accommodation, subject to a guardianship application under s.7 MHA.
Lieven J noted that the issues around SE’s capacity were complex. Dr O’Donovan, Consultant Forensic Psychiatrist, considered that SE had emerging emotionally unstable personality disorder (“EUPD”) (although it was not possible to formally diagnose SE at that point due to her young age). The effect of SE’s emerging EUPD was that her capacity fluctuated; when SE was in a state of arousal and dysregulation, she lacked capacity to make decisions in the relevant domains. Lieven J accepted Mr O’Donovan’s evidence that whilst SE had some insight into her condition, she found it very difficult to weigh up the information, particularly when stressed, and that as such, she lacked capacity.
In terms of residence and care arrangements, Lieven J held that SE’s best interests were served by her remaining in her current placement. Accordingly, Lieven J authorised the deprivation of SE’s liberty in that placement as being necessary, proportionate and in her best interests. In terms of SE’s contact with her family, Lieven J approved a detailed contact plan which had been prepared by the local authority in collaboration with the Official Solicitor. This contact plan had been designed to allow SE to maintain contact with her two younger brothers, aged 16 and 13, without her being brought into contact with her mother and father (with whom she did not want to have contact).
Turning to the twin-tracked application for ME to be displaced as SE’s nearest relative on the basis that he was considered not to be suitable to act under s.29(3)(e) MHA, Lieven J held that ME was unsuitable to act as SE’s nearest relative, stating that “SE does not want to see or speak to her father, she has said that she wants contact with him to cease, she has made allegations of sexual, physical and emotional abuse against him and, as set out above, I have made a number of findings against ME in relation to his abusive and controlling behaviour towards SE. It necessarily follows that ME is not suitable to act as SE’s nearest relative”. Lieven J made the order for an indefinite period, in order to give SE stability and ensure she did not have to worry about the role of her parents under the provisions of the MHA.
Read judgment here