Update: Court of Protection

Welcome to the first legal update on the Court of Protection, which considers selected welfare judgments handed down during 2012.

Readers are encouraged to send in cases of interest and credit will always be given. Most transcripts can be found on Mental Health Law Online (www.mentalhealthlaw.co.uk) or COP Cases Online (www.39essex.com/court_of_protection).

Inherent jurisdiction

In DL v A Local Authority and others [2012] EWCA Civ 253, the Court of Appeal considered the High Court’s inherent jurisdiction following the implementation of the Mental Capacity Act 2005 (MCA).

Theis J had concluded that the inherent jurisdiction could be used to protect an elderly couple with decision-making capacity, but dominated by their son, because:

• the inherent jurisdiction had not been limited to cases where an adult lacked capacity: Re SA [2005] EWHC 2942 (Fam) was not an isolated decision;

• the essence of the jurisdiction was to be flexible and responsive;

• parliament had not excluded the inherent jurisdiction when passing the MCA;

• without the inherent jurisdiction ?a new ‘Bournewood gap’ would open up;

• the primary purpose was to allow the person concerned to receive help and make an unhindered decision; and

• the inherent jurisdiction would not always be used.

The Court of Appeal agreed, noting that the court had affirmed the survival of the inherent jurisdiction in Westminster City Council v C [2008] EWCA Civ 198, where the person concerned lacked capacity, but the relief sought was outside the remit of the MCA (see also XCC v DD below).

Approach to best interests

In K v LBX, L (by his litigation friend the Official Solicitor) and M[2012] EWCA Civ 79, the Court of Appeal considered whether article 8 ECHR required priority to be given to placement of an incapacitated adult with their family.

K was the father of L, who had ‘mild mental retardation’. The issue was whether it was in L’s best interests to have a trial of supported living accommodation or continue living with K. L had strong relationships with his father and brother and received good care at home.

Theis J concluded that the trial was in L’s best interests and had observed: “While the court must factor into the balancing exercise it has to undertake the family life that L clearly has with K and his brother, that should not be the starting point.”

It was argued that authorities from Re S [2003] 1 FLR to Hillingdon LBC v Neary [2011] EWHC 1377 established there should be no interference in the family life of an incapacitated person unless the court started from the application of article 8.

The Court of Appeal rejected any attempt to read into the best interests balancing exercise starting points or presumptions, because cases arising under the MCA or inherent jurisdiction are strongly fact-dependent. The safe approach is to ascertain the best interests of the incapacitated adult on the application of the section 4 checklist, then ask whether the resulting conclusion amounts to a violation of article 8 rights and whether that violation is nonetheless necessary and proportionate.

Existing family life does not ‘trump’ future private life and interference in family life may seek to enhance P’s private life.

Medical treatment

In Re D, Peter Jackson J acceded to a trust’s application for withdrawal of active medical treatment (including artificial nutrition and hydration), for a man who was in a persistent vegetative state. The application was supported by D’s family, experts and the Official Solicitor on D’s behalf.

However, the magnitude of the decision still required careful enquiries to be made. D had given a signed letter to his sister-in-law in which he refused treatment that would only extend a reduced quality of life. The letter did not comply with the requirements of s25(5) and s25(6) MCA and was not therefore an advance decision.

However, the judge commented: “Had there been anything to put in the balance against the other evidence, D’s wishes would have carried very great weight with me. He was a very private man before his incapacity, who would have been horrified at the prospect of being kept alive in this condition, with the total loss of privacy that his dependency entails.”

In June 2012, the same judge considered A local authority v E (by her litigation friend the Official Solicitor) and A health authority and E’s Parents [2012] EWHC 1639, which raised the possibility that life-sustaining treatment might not be in the best interests of E who, though lacking capacity, was fully aware of her circumstances.

E had mutually complicating conditions: long-standing anorexia nervosa, unstable personality disorder, alcohol dependence syndrome, opiate dependence and the consequences of long-term malnutrition. E had been admitted to a specialist unit at 15 and was subsequently able to complete her school education and begin university.

Since 2006, she had undergone a series of admissions under the Mental Health Act 2006, alternating with treatment in the community. Long-term funding for specialist residential treatment and rehabilitation had not been available.

In July 2011, E signed a document refusing treatment to prolong her ?life and, in October 2011, she signed ?an advance decision, complying ?with s25 MCA.

She was detained under s3 MHA the same day, admitted to an eating disorder unit, but, following discharge, deteriorated again, and was re-admitted under s3 in March 2012.

Tube feeding was stopped following her opposition and on 3 April a professionals’ meeting attended by E’s parents unanimously agreed that treatment options had been exhausted.

On 20 April, she was admitted to hospital for palliative care. On 18 May, the local authority made an urgent application to the Court of Protection, by which time E’s death was imminent.

The application should have been brought much earlier, given that the case had raised ethical questions years ago, and there was a question mark ?over E’s decision-making capacity at ?the time of her advance decision in ?July 2011.

An earlier application would have allowed E to participate directly and would have avoided the distress to E and her family of disruption to the palliative care pathway they had all accepted.

The judge found that E, although able to understand and retain information and communicate her views, lacked capacity to make decisions about treatment because of the overpowering fear of weight gain which prevented her assessing the options.

E had lacked capacity to make both the advance decisions signed in 2011.

There were two options: to continue with the palliative care until E’s death; or opt for highly invasive long-term treatment in a specialist hospital. This had not been tried ?before and the prospects of success ?were uncertain.

E opposed further treatment and wanted her choice to be respected, even if it meant her death. Her parents supported her. The judge noted the difficulty of disentangling E’s beliefs ?and values from the grip of her illness, but said that there was nothing to ?suggest that if E were well she would ?not want efforts made to save her. Those who knew E best did not support further treatment.

The judge put E’s life in the other scale and noted that services and funding were available now which had not been before. The presumption in favour of preserving life remained. The proposed treatment ?was in E’s best interests and the resulting interference with her article 3 and 8 rights was proportionate and necessary to protect her right to life under article 2.

The state was honour bound to resource the plan of action for E in the short, medium and long term.

The validity of an advance decision arose in The X PCT v XB and YB [2012] EWHC 1390 (Fam). Theis J considered, on 1 May 2012, whether an advance decision by XB to have ventilation removed in certain circumstances was: a) valid; and, b) intended to be time limited to 2 May 2012.

XB had motor neurone disease and for the past eight years had required assistance in ventilation and communicated using eye movements. XB had made an advance decision in November 2011 that he wished his ventilator to be removed and to receive only palliative treatment, at the point (which had been reached) where he lost the ability to communicate and have any control over his care.

A question arose about the validity of the advance decision and whether it was time-limited until 2 May 2012. It had taken a month to hold a meeting to discuss this, following which the application had been made at the end of April 2011.

Evidence was gathered at very short notice and the judge found that the advance decision had been valid and that XB had not intended that it should be time limited.

The judge observed that any issue about advance decisions should be investigated as a matter of urgency and an application made to the court if necessary. She reiterated the guidance from 9.19 of the Code of Practice as to the contents of the decision.

She noted that some of the difficulties in this case had arisen because of the inclusion in a ‘pro forma’ advance decision of a ‘valid until’ date and suggested the inclusion of such provisions should be re-considered.

In An NHS Trust v K and Another Foundation Trust [2012] EWHC 2922 (COP), Holman J considered the case of K who had cancer of uterus and lacked capacity due to long-standing mental illness to consent to a potentially life-saving operation, proposed by the trust and supported by K’s three very committed sons.

Complicating factors were K’s obesity and increased risk of compromise to her heart if restraint had to be used, as K was very likely to resist.

Holman J authorised a hysterectomy and removal of the fallopian tubes and ovaries and for sedation to be used to reduce the risk of agitation before and after the surgery was carried out.

He gave the surgeon, the anaesthetist, the intensivist (who would care for K after the operation) and K’s treating psychiatrist a power of veto, even though the last two would not be involved in the surgery, and ordered that the declarations would cease until further order if any of K’s sons notified the doctors that they no longer considered the operation should take place.

Marriage and sexual relations

In A Local authority v H [2012] ?EWHC 49 (COP), Hedley J handed down judgment concerning a very vulnerable woman with learning disabilities and autism, and a long history of sexualised behaviour going back to childhood.

She had been both sexually and financially exploited.

She was admitted to hospital ?and detained under the Mental Health Act. On discharge from hospital, significant restrictions were put in ?place to prevent her engaging in sexual activity which could be potentially exploitative and damaging, regulated by a standard authorisation, there being no dispute that this constituted a deprivation of H’s liberty.

Hedley J noted that no first-instance decisions bound him as to the correct test for capacity to consent to sexual relations and noted the inconsistency between the reported decisions.

He considered the information relevant to the decision was: “A basic understanding of the mechanics of the physical act and clearly an understanding that vaginal intercourse may lead to pregnancy. Moreover, capacity requires some grasp of issues of sexual health.

“However, the knowledge required is fairly rudimentary. It should suffice if a person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom.”

Hedley J was invited to formulate a test encompassing the moral and emotional component of sexual relationships. He considered it impossible to formulate a test in relation to the moral aspect and, as to the emotional context, he said: “One can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse?”

Applying this test H lacked capacity to consent to sexual relations.

In XCC v AA, BB,CC and DD [2012] EWHC 2183 (COP), Parker J made declarations that the marriage of DD and AA should not be recognised in the UK due to DD’s lack of capacity at the date of the marriage.

DD had significant learning disabilities. She was a loved and cherished member of a family of Bangladeshi origin described as ‘insulated from mainstream English society’. In 2003 she contracted a marriage in Bangladesh to AA who arrived in the UK on a spousal visa ?in 2009.

The police obtained a forced marriage protection order and the local authority commenced proceedings in the Court of Protection.

Following a hearing in 2010, Parker J made declarations that DD lacked capacity to marry both now and in 2003, lacked capacity to consent to sexual relations, and lacked capacity to make decisions about residence, care and contact.

Best interests declarations effectively terminated her relationship with AA. A further hearing was to consider the status of the 2003 marriage.

The judge declined to approve a compromise supported by all parties, based on undertakings and assurances, describing it as ducking the issue. Only a petition for nullity could annul the marriage but, following KC, the High Court could make declarations under its inherent jurisdiction that the marriage was not recognised.

Such declarations were outside the remit of s15 MCA 2005 so could not be made by the Court of Protection. The inherent jurisdiction could be exercised by the High Court alongside the MCA, following DL, and it would be discriminatory to those lacking capacity to make decisions if they had less protection than those with capacity but subject to coercion.

In exercising the inherent jurisdiction, public policy was relevant. The court was not bound by s1(6) MCA, but had to make orders that were necessary and proportionate, and could act on its own motion.

The judge observed that a marriage, where one party lacked the capacity to consent to it, was, by definition, a forced marriage for the purpose of the FMA and was a gross interference with the person’s autonomy.

She noted that DD’s family GP had been aware of DD’s marriage. It was the duty of a professional who becomes aware that an incapacitated person may undergo a marriage abroad to notify the local learning disability team and/or forced marriage unit.

Hedley J gave permission for his judgment in CYC v PC and NC [2012] MHLO 103 (COP) to be reported, as it raised issues that should be capable of public discussion.

PC had learning disabilities and formed a relationship with NC, whom she married while he was serving a sentence of imprisonment for a series of sex offences. PC supported NC in his insistence of innocence and, on his release, both wished to resume cohabitation. It was accepted that NC should be considered a risk to PC but that he had never harmed her.

NC was released on licence. The local authority commenced proceedings and supported the resumption of the couple’s married life.

In considering PC’s capacity, Hedley J stated that the MCA is concerned with the “actual decision at hand”, which may be generic or specific. Stressing the importance of applying the statute to the facts of the individual case, the judge identified the decision facing PC as whether to take up married life with NC now that he was free to do so.

PC should be taken to have had capacity to marry in 2006, but the question before the court was narrower and required a fresh decision, which PC did not have capacity to make. The options before the court was to prohibit contact between PC and NC, involving an open-ended restriction of PC’s liberty.

This would be unenforceable and an unsustainable intrusion on the right of willing and consenting parties to enjoy married life together, marriage being a “foundational building block of our society”. While the resumption of the marriage carried undoubted risks PC had a protective relationship with the local authority and both she and NC had complied with restrictions thus far.

Deprivation of liberty

This issue remains overshadowed by uncertainty over the definition of deprivation of liberty for the purpose of article 5 ECHR. It is hoped that the Supreme Court will provide some clarity when the appeal in Chester West is considered. Two cases are mentioned.

The first is EM v SC and CM [2012] EWHC 1518. EM was 92 years old and was detained under a series of standard authorisations, the most recent on 16 January 2012.

EM appealed and was represented by the Official Solicitor, who argued that EM had capacity to decide where to live. The hearing took place on 14 February and provision was made for EM to attend and address the court.

Expert evidence was obtained jointly by the parties and it is suggested that this is an example of the appeal process working to enable a relatively quick determination with EM’s participation.

The second case is Re HA [2012] COP 1268. HA had appealed against a standard authorisation detaining her in a care home. The central issues were whether the current regime promoted HA’s welfare in the least restrictive way and whether there was a support package that could allow her to return home.

Charles J noted these questions engaged the best interests requirement in an appeal under s21A, but could also be determined under ss15 and 16 MCA. HA and her relevant person’s representative (RPR) would be eligible for non-means tested legal aid in an appeal under s21A, but otherwise would have to satisfy a means test.

While determining the issues, the court should exercise its powers to ?make interim authorisations of deprivation of liberty, but the case should remain an application under s21A for all practical purposes, including legal aid, even if a standard authorisation was no longer in place.

In my experience the Legal Services Commission has accepted this. The court should direct that the statutory scheme should apply to any resultant deprivation of liberty at the conclusion of the case.

The Court of Protection is ‘charged with choosing between pragmatically available solutions and is not engaged in considering and deciding what, in an ideal world, would be in the relevant patient’s best interests, albeit that that could be a factor to be taken into account in determining what the relevant public authority could, applying administrative law principles be ordered to provide, or to consider providing’.

The local authority needed to identify potential alternatives and how they could be provided and funded.

 

Costs and resources

Mr Justice Peter Jackson considered in the NHS Trust v D (by his litigation friend the Official Solicitor) [2012] COP 886 whether the Court of Protection Rules had affected the practice, in a line of authorities culminating in the judgment of Sir Mark Potter in A Hospital v SW and a PCT [2007] EWHC 425 (Fam), of awarding the Official Solicitor half of his costs in medical cases, to be paid by the trust concerned.  

The trust submitted that the rules, specifically the general rule that parties bear their own costs (rule 157) had displaced the earlier practice while the OS submitted they had not.   There was no issue as to the conduct of any of the parties.  When deciding whether to depart from the general rule, the court could consider the role of any public body involved in the proceedings (Rule 159 (1) (c).

Rule 163 allowed the court to provide for the costs of the Official Solicitor and these provisions reflect the OS’s distinctive role in assisting the court in the most difficult cases.  Nothing in the rules disturbed the previous pragmatic compromise which had developed prior to the MCA. 

Peter Jackson J commented that there was “much to be said for a rationalisation of the underlying arrangements, with the Official Solicitor's budget being set in such a way that he does not depend upon the recovery of costs from other public bodies. That, however, requires a change by government.”

In Re Stapleton,  departure from the general rule that in financial cases P’s estate will normally bear the costs in property and affairs cases (Rule 156) was justified by the conduct of Mrs Stapleton’s son and attorney who had carried out “a wholesale assumption of dominion over Mrs Stapleton’s estate….as if she were dead”.  

His attorneyship was revoked on the basis of unsuitability and a panel deputy appointed.  It would have been unreasonable for Mrs Stapleton to pay his costs.

The guidance of the President of the Family Division in A Local Authority v DS and others [2012] EWHC 1442 (Fam) is included as the issue concerned frequently arises in the COP. 

In care proceedings  the Legal Services Commission refused to meet the costs of a jointly instructed expert whose hourly rate was above the limit set by the LSC, which is linked to the rate usually paid by CAFCASS.  This had led to  delay.

The President gave the following guidance:

45.  i) Words such as "the cost thereof is deemed to be a necessary and proper disbursement on [a named individual's] public funding certificate" equivalent effect should no longer be used when the court orders an expert report. The words do not bind the LSC and the power to make such an order is doubtful.

The words of the regulations should be followed, particularly if the court is being asked to approve rates above those allowed by the Funding Order.

ii) The question is whether the report of the expert is necessary for the resolution of the case.

iii) The court  orders  the instruction of an expert, and this responsibility neither can nor should be delegated to the parties. The court should identify the issues on which it wants the expert to report.

iv) If the court considers the  expert's report is necessary for the resolution of the case, it should say so, and give its reasons, by a preamble to the order, or  a short judgment.

v) A consent order must be supported by reasons as should a decision by the LSC.

vi) Reasons need not be lengthy or elaborate, but must explain to anyone reading them why the decision maker has reached the conclusion he or she has.

vii) Speed is of the essence in proceedings relating to children. An application for prior authority must be made at the earliest opportunity and, once again, must be carefully drafted and supported by reasons.

viii) The LSC should deal with such applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons which can be concise. The solicitor could go ahead regardless, and instruct the expert at the rates the expert demands, but the suggestion is unreal.

The expert's contract is with the solicitor, and if he or she does not recover the expert's costs from the LSC,  the solicitor is liable. Given the exiguous rates of remuneration, this is a risk no solicitor is willing to take.

ix) Similar considerations apply to any challenge to the LSC's ruling.

x) If a case is urgent, it should be so marked and the reasons explained.

The LSC’s position is understood to be that the CAFCASS rate does not apply to proceedings in the COP but is considered to be a starting point when higher rates are sought.

 

Sophy Miles is a consultant at Miles and Partners. Contact: sm@milesandpartners.com. For more information, see www.milesandpartners.com

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