Court of Protection: state of play
Sophy Miles summarises recent cases from the Court of Protection
Property, harassment and costs
No excuse for attorney’s ignorance
In Re Buckley (12228697), Buckley appointed her niece C as her attorney. Following a complaint, an investigation by the Office of the Public Guardian (OPG) revealed that there had been significant depletion of Buckley’s estate of which £72,000 had been invested in C’s reptile-breeding business.
The OPG sought suspension and subsequently revocation of the attorneyship. ‘C’ asserted that Buckley loved animals and the investment was what she would have wanted.
SJ Lush gave a clear statement about the responsibilities of attorneys. He said: “Managing your own money is one thing. Managing someone else’s money is an entirely different matter.” And it involved acting in the donor’s best interests and in accordance with the attorney’s fiduciary duties.
SJ Lush considered these to be akin to trustees’ duties and, as such, attorneys should have regard to guidance (Investing for Patients) issued prior to the Mental Capacity Act when the court and the then Public Guardianship Office were more actively involved in investments.
Setting out how that updated guidance may now read, SJ Lush said that attorneys must keep their finances separate from the donor’s; listed the transactions that require authorisation of the court (including loans to the attorney and investment in the attorney’s business); and stressed the need to attorneys to be aware of the code of practice provisions and the information referred to on the lasting power of attorney itself. He said ignorance is no excuse.
Daughter imprisoned for breach of COP orders
In SCC v JM, WM and others (11952926), HHJ Cardinal gave his reasons for committing WM, the respondent and daughter of JM, to prison for five months for persistent breaches of orders made by the Court of Protection.
The orders included injunctions preventing WM from encouraging ?JM to leave the placement, discussing a return home with him, or removing him from the jurisdiction; injunctions preventing WM from using or threatening violence against her father or any employees of the local authority or care home, or intimidating or harassing or pestering them.
WM breached the orders through numerous abusive messages and phone calls to the lead social worker and home; taking her father to a solicitor to discuss the case and bringing him to court; and producing a leaflet with information about the case. The judge expressed great concern about her behaviour towards her father, whom WM had reduced to tears.
The judge found that WM had breached the orders made and had no intention of obeying court orders. She had attempted to evade personal service but had eventually collected the relevant documents from the local authority.
The judge recognised that imprisonment (five months for each breach, concurrently) would have an effect on JM, who appreciated WM’s visits despite her behaviour. But the court could not allow the situation, which caused JM’s “very considerable grief” to continue.
Local authority’s actions tainted with illegality
In WBC v CP & Ors [2012] EWHC 1944 (COP), Ryder J considered an application for costs by LPM, brother of CP (C).
C had initially, through his mother as litigation friend and subsequently through the official solicitor, brought a claim against the local authority in ?the administrative court and subsequently the local authority issued an application in the Court of Protection. The local authority conceded breaches of C’s article 5 ?rights and breach of statutory duties.
The case concerned C’s treatment regime at a residential school, where he was routinely secluded in a padded room. The court had concluded in March 2011 that from July 2008, when C turned 16, to the date when interim declarations were made, there had been no authority for C to be deprived of his liberty; and that the Mental Health Act 1983 code of practice applied to seclusion at the school.
In considering LPM’s costs application, Ryder J followed the principles set out by the Court of Appeal in G v E [2011] EWCA Civ 939 noting that only local authorities that have broken the law or committed misconduct need to fear a costs order.
In this case there had been a disregard of the Mental Capacity Act 2005, breaches of statutory obligation and a failure to apply relevant guidance, justifying departure from the general rule, even in the absence of bad faith.
Moreover, had the local authority followed proper procedure, LPM’s role is the proceedings would have significantly reduced. The local authority’s actions were “tainted with illegality”, their decision-making “impoverished and disorganised” and had led to an avoidable delay of many months.
Medical treatment
Force feeding anorexic woman would be futile
In NHS Trust v L and others [2012] EWHC 2741 (COP), the trust sought declarations that it was not in the best interests of L, a 29-year-old woman with a 15-year history of severe anorexia to receive forcible feeding or medical treatment, the absence of which would lead to her death.
Despite the support of L’s devoted family and exceptional and innovative medical treatment her recovery prospects were described as “approaching zero”.
L weighed about 20kg. She had organ damage and impaired liver and bone marrow function. Because she had no sub-cutaneous fat, it was very difficult to administer treatment intravenously, and she suffered severe pain from bedsores. She had 580 calories a day through a nasogastric tube, which she sometimes sabotaged, and would not agree to an increase. This intake would not maintain her weight, but it reduced the chances of distressing hypoglycemic episodes.
Force feeding had to be carried out under sedation, which would itself be very likely to lead to death. L wanted to recover and move from hospital to a nursing home, but this wish was “completely overwhelmed by her terror of gaining weight”, which compromised L’s ability to review treatment options for her anorexia and hypoglycaemia.
Mrs Justice Eleanor King found that L lacked capacity to make decisions about such treatment, while retaining capacity to decide on treatment for pneumonia.
All parties including L’s family agreed her best interests required a plan that promoted her dignity and comfort and that she should not be force-fed.
The judge found this to be a rare case where the only possible treatment (force-feeding) would be futile and over-burdensome (referring to the Mental Capacity Act code of practice 5.31) and was “not to be countenanced in L’s best interests”.
Young woman with Down’s syndrome should not be sterilised
In Local Authority v K [2013] EWHC 242 (COP), a 21-year-old woman with Down’s syndrome and a mild to moderate learning disability was sent to see a consultant gynaecologist because her parents were concerned about the potential risk of pregnancy. He initially agreed to carry out sterilisation because K’s mother was “adamant”.
But a colleague advised him to seek a second opinion and hold a best interests meeting. The second consultant recommended a coil as the least restrictive option then a third opinion was sought as concluded at the best interests meeting.
The local authority started proceedings because K’s parents suggested they were considering taking K abroad for sterilisation. An independent report concluded that K would currently receive no benefit from contraception. If she was at risk of pregnancy, an intrauterine device would be in her best interests, unlike sterilisation.
The judge praised the report for its clarity, which had been appreciated by K’s parents who acted in person. They said: “In a forensic world in which self-representing litigants increasingly populate our courts, it is vitally important that an expert writes his or her report in a manner which is accessible and intelligible to all.”
K’s parents argued that sterilisation may be in their daughter’s best interests in future, expressing what the judge found to be sincere concern for K’s welfare. The judge found K lacked capacity to make decisions about contraceptive medicine applying the test in Local Authority v A [2010] EWHC 1549 (COP), and that without a significant change in circumstances, sterilisation was not the least restrictive way.
The judge said: “Referral to the Court of Protection in a case such as this could and should always be considered at the earliest moment in accordance with the rules (see, in particular, practice direction 9E to the Court of Protection Rules 2007, and paragraph 6.18 and paragraphs 8.18-8.29 of the Mental Capacity Act 2005 code of practice).
“I take this opportunity to remind medical (and, where relevant, legal) practitioners of the Court of Protection’s role in considering a question of non-therapeutic sterilisation. Such a treatment decision is so serious that the court has to make it.”
Procedural guidance is set out including: the applicant should discuss the proposed application with the official solicitor before a court application; the organisation providing clinical or caring services to P should be named as a respondent (if not the applicant); and the matter must be heard in the High Court.
Deprivation of liberty
Investigating the boundary between articles 5 and 8
J Council v GU (by his litigation friend the official solicitor) and J Partnership Foundation Trust and CQC and X Limited [2012] EWHC 3531 COP is a fascinating case about the interface between articles 5 and 8 of the European Convention on Human Rights. GU was 57 and “very seriously challenged” with childhood autism, obsessive compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia.
GU lacked capacity to litigate or take decisions about residence and care, medical treatment, and property and affairs. It was in his best interests to remain at ‘Y’ care home and subject to restrictions indefinitely. This was largely because of risk to children, such that he was deprived of his liberty but also to subject to interferences with his private life, engaging article 8. These included strip searches and monitoring his correspondence and telephone conversations.
Article 8 does not grant an absolute right but that can be curtailed in accordance with the law when necessary (including for the protection of others). The fact of lawful detention does not remove the detained person’s rights under article 8, but a balance must be struck and the interference must be in accordance with the law (including policy guidance).
The judge noted with concern the lack for those detained under the Mental Capacity Act of equivalent safeguards to those governing monitoring correspondence of those detained under the Act, which include a right to review decisions to withhold correspondence by the Care Quality Commission (CQC).
The order agreed by the parties included detailed policies as to when GU could be searched, have calls and correspondence monitored; such policies to be regularly reviewed by the NHS trust and overseen specifically by the CQC.
The judge said: “Where there is going to be a long-term restrictive regime accompanied by invasive monitoring of the kind with which I am concerned, it seems to me that policies overseen by the applicable NHS trust and CQC akin to those which have been agreed here are likely to be necessary if serious doubts as to article 8 compliance are to be avoided.”
Relative normality concept not extended
In the case of Re LDV [2013] EWHC 272, L had learning disabilities and an emotionally unstable personality disorder. She had undergone traumatic experiences in institutions including Winterbourne View (WH) and was detained under section 3 of the Mental Capacity Act at St Andrews Hospital.
A tribunal granted her a deferred discharge noting that L “needs to be placed in a residential establishment in the community, equipped to meet the needs of a person suffering from mild learning disability with challenging behaviours, and supported by a package of aftercare comprising medical, nursing and social worker oversight and the provision of day-care”.
She was moved to a hospital nearer her home area and remained there after the deferred discharge took effect, but subject to considerable restrictions.
An approved mental health practitioner (AMHP) refused to apply for a further order under section 3 of the Mental Capacity Act because there had been no change of circumstances to justify that but recommended an application to the Court of Protection to avoid the risk of unlawfully depriving L of liberty.
An application for a standard authorisation under schedule 1A was refused because the best interests assessor (BIA) found L to be ineligible under case E to schedule 1A (that is, she was “within the scope of the Mental Health Act”). The BIA considered that L was deprived of her liberty and an urgent application to the Court of Protection was made.
The very difficult question as to whether L was within the scope of the Mental Health Act despite her earlier discharge from detention by the tribunal was deferred for a further hearing.
Baker J found that L was deprived of her liberty at the hospital. In applying the guidance in Cheshire West and Chester Council v P [2011] EWCA (Civ) 1257, the judge accepted the official solicitor’s argument that the “relevant comparator” was “a person properly placed in a residential placement in the community” (as envisaged by the tribunal) even though no such placement had yet been identified.
The concept of relative normality was not intended to exclude cases such as L’s. Noting that not all the factors that point to deprivation of liberty in paragraph 2.5 of the Deprivation of Liberty Safeguards code of practice need to be present, the judge found it “manifestly clear” that L was deprived of her liberty: “The plain fact is that in this case the care and movement of L is subject to the complete and effective control of the staff at WH. That control extends to treatment, contacts and residence. The treatment includes medication. It has been decided that she will not be released into the care of others or to live elsewhere, unless staff consider it appropriate. Her social contacts are subject to a degree of control.”
The judge considered what information would be relevant to the decision to consent to L’s accommodation at WH, in circumstances that amount to a deprivation of liberty, making it clear this was not a precedent.
Sophy Miles is a consultant at Miles and Partners
Thanks to Alex Ruck Keene at 39 Essex Street