Court of Protection Newsletter #2921.04.22

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.

Edited by Aaqib Javed and Holly Littlewood. Written by September 2022 Pupil, Lauren Gardner.

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Jump to: Guidance | Cases Review 

New Vaccination Judgment from the Court of Protection

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Changes to the MCA Code of Practice and implementation of the LPS | consultation document published March 2022

Cases Review

North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) [2022] EWCOP 15 (30 March 2022)

E was a man in his mid-60’s who had a moderate to severe learning disability. It was agreed that he lacked capacity to decide whether to receive the Covid-19 vaccinations. The CCG applied to the Court of Protection for an order that it was in E’s best interests to receive the vaccines.

The Official Solicitor’s position was that the vaccination was likely to be in E’s best interests. On the other hand, one of E’s siblings strongly opposed the application.

E’s sibling has concerns that  E’s disability had been caused by the vaccine for whooping cough. E’s sibling sought an expert witness opinion from Dr Eccles, who was strongly critical of vaccination. Poole J declined to allow the evidence from Dr Eccles, citing that he had no particular expertise in Covid vaccinations, and that he was not objective on the topic. Further, Poole J noted that Dr Eccles’ report had a lack of specificity to E, and there was no reference to Dr Eccles reviewing any evidence in relation to E’s proceedings.

Poole J ultimately held that it was clear E would wish to be able to attend indoor events, although his learning disability means that he was unable to understand and maintain social distance. He noted that there was not enough evidence about E’s wishes regarding concerns about the whooping cough vaccine to take that into account, although he noted that E has received the flu  vaccination since 2007 without issue.  Poole J also took into account the risk of E’s obesity in relation to Covid-19.

Ultimately, Poole J held that “disagreements amongst family members about P being vaccinated which are at their root disagreements about the rights and wrongs of a national vaccination programme are not suitable for determination by the court. It will be in P’s best interests to avoid delay and for differences to be resolved without recourse to court proceedings.”

Full judgment:

LF v A NHS Trust & Ors [2022] EWCOP 8 (07 March 2022)

This application concerned G, a 27 year old woman with a degenerative disorder affecting her central nervous system. Hayden J had previous held that G should move to a specialist residential unit, but a move back to her parents’ care should be the object of her care plan. The application was brought by LF, G’s father, to discharge the reporting restrictions.

The objective of the reporting restrictions, which had been in place since 14th August 2017, was to protect G’s privacy. LF submitted that G’s life was already in the public domain and so the need for the restrictions was unnecessary. One reason that LF wanted to lift the restrictions was to begin a crowd funded campaign, endorsed by various celebrities, to purchase an adapted vehicle, which would allow her to see her family. Furthermore, LF noted that several media and TV outlets had contacted their family to report on Hayden J’s earlier decision to move G to a nursing home in opposition to G’s parent’s wishes.

Hayden J noted in the judgment that extracts from the family’s social media accounts had been brought to his attention, which revealed a clear opposition to G’s move to a nursing home using “unyielding language”, which caused him to “express concerns for the future”. Hayden J particularly noted that some of the posts appeared to be written from G’s voice, despite her limited capacity to communicate, which was particularly “disturbing”.

The respondent noted that there was a likely adverse impact on G’s placement if the reporting restrictions were lifted. They argued that the focus should be on facilitating the move rather than jeopardizing the placement.

Hayden J considered the competing rights of LF’s freedom of speech (Article 10) and G’s right to be cared for safely. Hayden ultimately J decided that it was justified to restrict LF’s Article 10 rights, although the balance may shift in the future.

Full judgment:

S v Birmingham Women’s And Children’s NHS Trust [2022] EWCOP 10 (07 March 2022)

HHJ Hilder had made a declaration in February that S had capacity to consent to a termination of her pregnancy. This judgment noted her reasons for the decision.

S was 38 years old and 23 weeks pregnant. She was currently detained under the Mental Health Act. S, unusually, had capacity to conduct the proceedings but not to decide the issue of the object of the proceedings.

S had a strong wish to become a mother before she as 40, and was determined to conceive through IVF using a sperm donor. With her Community Psychiatric Nurse’s agreement, S stopped taking her medication, and although she began to feel some sensory disturbances, she did not tell anyone (so as not to affect the IVF process) and learned that she was pregnant in October 2021 through IVF.

S’s mental health declined and she was sectioned in January 2022. Her hospital notes record her doubts of her pregnancy at the time. At a meeting in February, she voiced that she wanted to consider a termination. At a best interests meeting, the conclusion was reached that S lacked capacity to consent to the termination and it would not be in her best interests to have a termination. No one in the treatment teams proposed to take any further steps in relation to this issue.

These proceedings were brought by S in February 2022 with a request for an urgent hearing.

S’s position was that she did have capacity to terminate her pregnancy. S’s counsel noted the physical risks to S in the termination procedure, but also the risk of harm to S’s mental health in both termination and continuing the pregnancy, and potential safeguarding issues during the live birth.

The respondent medical bodies emphasised that the clinicians were all of the view that S lacks capacity to make the termination decision because she was unable to use and weigh her decision. HHJ Hilder disagreed, and rather, S’s Obstetric Consultant observed S as “weighing information by discussing the pros and cons of ending vs. continuing the pregnancy”, and noted that S made a list in her notebook of the “pros and cons” of continuing with the pregnancy.

HHJ Hilder considered that the “unanimous agreement” that S lacked capacity and that abortion was not in her best interests was a “distortion of reality”. Further, she heavily criticised their failure to refer the matter to the Court of Protection. As such, HHJ Hilder was not convinced that the statutory presumption of capacity had been rebutted in this case, and how S chose to exercise her capacity was a matter for her alone.

Full judgment:

Manchester University NHS Foundation Trust v WV [2022] EWCOP 9 (08 March 2022)

These proceedings were brought with regards to WV, a 17 year old who lacked capacity due to autism and ADHD, who was currently having kidney dialysis. It would only be possible for WV to continue with dialysis for another 12 months, as he as running out of veins that could be used. After this, the only treatment option would be a transplant. The Trust sought a declaration about whether it was in WV’s best interests to have a kidney transport given the risks to the treatment. It was agreed that WV lacked capacity to decide whether to consent to the transplant.

The Trust’s original view was that it was not in WV’s best interests to have the transplant, given the potential harm it would cause. During the proceedings, however, the Trust’s witness’s evidence prompted a more nuanced view, and the Trust’s final position was that it was for the Court to decide whether the transplant was in WV’s best interests.

The Official Solicitor accepted the risks associated with the operation, but remained in favour of the transplant, arguing that WV should be sedated for the shortest time possible. WV’s mother, Amy McLennan, also accepted the risks but remained strongly in favour of the transplant.

Arbuthnot J concluded that it was in WV’s best interests to have the transplant. The consequences of not having the transplant would be that WV would sadly die within 12 months. Though there was the risk of significant psychological harm to WV, she held that it was a case of what was the “least bad decision”. Arbuthnot J noted that “the only possibility of him having a longer life with an even better quality is through having a transplant.”

Full judgment:

PH v A Clinical Commissioning Group & Anor (Dismissal of proceedings) [2022] EWCOP 12 (14 March 2022)

PH had a diagnosis of Autistic Spectrum Disorder, moderate learning disability and Tourette syndrome. He had been detained under the Mental Health Act for a number of years, and as subject to considerable restrictions. It was agreed that PH needed to be moved somewhere that could better meet his needs.

PH’s mother, LH, brought these proceedings seeking declarations as to what residence and care options are in PH’s best interests.

Counsel for PH sought for the proceedings to continue even though there was no immediate prospect of PH leaving mental health detention, submitting that it was appropriate for the Court to oversee the process of PH’s discharge. The respondent CCG and LA believed that continuing proceedings was unnecessary and costly.

HHJ Burrows decided that the proceedings did not need to continue at this time. He noted that there are extensive checks and balances required for those detained under the Mental Health Act, such as entitlement to a tribunal. HHJ Burrows also noted the imposition of a statutory duty on the CCG required under Section 117 of the Mental Health Act that they must give PH the best opportunity to be discharged. It was clear that the CCG and Council were genuinely trying to ensure PH could leave the hospital. The decision regarding PH’s capacity will not be considered until a discharge plan as ready and approved, and so there was no need for the Court of Protection to be involved at the current time.

Full judgment:

A Local Authority v ST (Costs application) [2022] EWCOP 11 (14 March 2022)

ST as a young woman with a diagnosis of mild learning disability and ADHD. She reached a crisis point in Christmas 2021, and there was agreement between the parties that ST needed a care plan to keep her safe. It was agreed that ST lacked capacity to make decisions about her residence and care.

In December 2021, interim declarations were made whilst a detailed assessment was prepared. At a hearing in February 2022, the Local Authority sought to restrict ST’s access to social media due to the risk of her making contract with harmful people or giving away her address. The OS was concerned that there had been no specific assessment regarding ST’s capacity to use social media, and, even if there was, this would be disproportionately restrictive. The judge made orders for an adjourned hearing requiring the LA to provide various statements. However, the LA provided these statements late and so the hearing was ineffective. This application was brought by the Official Solicitor for costs.

HHJ Burrows granted the application. He held that the LA should have known their case was weak, and they had not sought an extension or vacation of the hearing. The LA were ordered to pay 85% of the OS’s costs.

Full judgment:

MB v PB [2022] EWCOP 14 (15 March 2022)

This care concerned PB, a 65 year old woman who suffered from impaired cognitive function after a severe brain hemorrhage in 2018. She lacked capacity to make decisions about her residence and care, contact arrangements, and to conduct proceedings. She had lived in a specialist care home since April 2019, and was subject to a standard authorization.

As a result of safeguarding concerns being raised, an order was made by Francis J in April 2021 that restricted P’s husband MB in accessing the care home and contacting with P. This application was brought by MB to challenge the standard authorization and contact restrictions.

MB did not accept any criticisms against him, and so it was necessary to hold a fact-finding hearing to determine the lawfulness of the contact restrictions. The issues for the fact-finding were varied, but generally related to MB’s controlling behavior, interference with P’s care, and interference with P’s relationship with other family members.

Sir Jonathan Cohen heard evidence from one of P’s children, P’s sister PD, the general manager of P’s care home, and a nurse (ME) who witnessed an event between MB and P. He found that there had been a pattern of controlling and coercive behaviour before P’s admission into full-time care, and this had continued since. Sir Cohen also found that MB sought to interfere in the provision of care to P, and had a controlling attitude to care staff. He found that MB had sought to limit the contact P had with other family members, and that P has at time found contact with MB to be upsetting, although she has derived pleasure from it at some points.

Although MB wants P to come home, P’s children and sister supported her placement in the care home. It was clear that  maintaining P’s position in the care home is incredibly important as it is able to meet her needs. However, Sir Cohen considered that the cessation of all contact between P and MB did not seem to be in her best interests, and so he considered a trial period of contract between P and MB to understand their reactions. He emphasised that this was not a best interests decision, but rather a suggestion of exploring the practicalities of this arrangement. A further hearing will be held when the parties have considered the judgment.

Full judgment:

London North West University Healthcare NHS Trust v M & Ors (Rev1) [2022] EWCOP 13 (21 March 2022)

M was a young man who had a cardiac arrest in November 2021. His health deteriorated, and there had been problems with providing him with nutrition. This had led the treatment team to suggest that he be given palliative care only. The family objected to this.

This application was brought by the NHS Trust for a declaration to allow them to discontinue life-prolonging treatments for M and to put him on a palliative care pathway.

Judd J reviewed the clinical evidence and the evidence from the family. It was clear that there were no further options to treat M, and the available options were to accept the NHS Trust’s care plan or transfer M to Charing Cross Hospital, where he would be likely to be treated in the same way as his current hospital. Particularly notable was the evidence of Dr Hanrahan, who stated, “there seems to be a choice only between a well-managed, reconciled and dignified death and a contested, adversarial and ultimately futile situation”. M’s mother and father strongly opposed the NHS Trust’s plan, expressing concerns that members of the clinical team have lied to the family, and “wish to euthanise M.”  M’s mother further submitted in her stated that “she believes there are individuals who have a vested interests that M does not survive.” The family wished for M to be given nutrition and further scans for a chance to recover. They believed that the experts had not spent enough time with M to come to their conclusions.

Judd J noted that the decision for the court was for what is in M’s best interests. She held that that the medical evidence is “unanimous, compelling, and overwhelming” that continuing treatment would prolong M’s life only by a few weeks, and that M’s quality of life would not be improved. As such, Judd J granted the NHS Trust’s declarations.

M sadly died before the care plan was put into action.

Full judgment:

PH v Betsi Cadwaladr University Health Board [2022] EWCOP 16 (31 March 2022)

PH was 41 years old with a complex medical history. He was unable to eat or drink and has challenges in verbal communication, although those who knew him understood his unambiguous communication.

Hayden J has criticised the Health Board in October 2021 for two reasons; firstly subjecting PH to physical restraint to take blood samples when there were reasons to believe he lacked capacity to consent to medical treatment, and indeed that there had been no application made to whether this was in PH’s best interests despite PH being represented by the Official Solicitor in the Court of Protection; and secondly the extraordinary period PH had remained in hospital despite the need for rehabilitative care to enable him to maximise his potential for independent living.

In February 2022, proceedings were brought to Hayden J to resolve a disputed concerning PH’s transfer from a general surgical ward to a mental health rehabilitation placement. PH had also fallen and required hip surgery in November 2021, which the Court approved.

PH articulated his wish for a life as ‘normal’ as possible. He had visited the private residential property in February, which he liked, and Hayden J approved an order for the move. There was no order for PH’s capacity to consent to medical treatment, and therefore it was clear that the presumption was that he did have capacity.

Sadly, since then, PH had refused to take nutrition for 41 days. PH’s doctor’s evidence was that PH had capacity to accept feeding, but was choosing not to. The OS voiced concerns that PH had not always been consistent in his approach to feeding.

Considering PH has the capacity to take these decisions for himself, Hayden J held that there was no jurisdiction for the Court of Protection in relation these proceedings. He noted that PH’s decision to refuse feeding is distressing, but it is his decision and there as no further role for the court.

Full judgment: