Court of Protection case review

Eleanor Suthern rounds up the latest rulings of interest to Court of Protection practitioners.

Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312

This appeal concerned an injunctive order placed on the father, mother and grandmother of the patient concerned, G, preventing them from sharing the story of G as part of a crowdfunding campaign. Hayden J justified this injunction order on the basis that he was concerned the care plans for G would be jeopardised if restrictions were lifted.

The father, mother and grandmother appealed on numerous grounds, as outlined at [23].

Baker LJ applied the statutory provisions as outlined at [25]-[29]. He referred to section 37 of the Senior Courts Act 1981 which provides us with the relevant test of granting an injunction, namely, whether it is just and convenient.

He referred to the dicta from Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24 which provides the law on what the two requirements before an injunction can be granted, namely:

“(i) an interest of the claimant which merits protection and

(ii) a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something.”

Baker LJ found that Hayden J had satisfied these requirements and rejected the grounds that the judge did not have the power to grant an injunction under section 16(5) of the Mental Capacity Act 2005.

Baker LJ dismissed the appeals of the father and mother. However, he allowed the appeal brought by the grandmother that she had not been properly served. The specifics of this are as follows: that she was not formally joined to proceedings as a respondent until the first day of the hearing, she was not represented, she joined remotely by a mobile phone from G’s bedside in the hospital.

As such, the appeal was remitted for re-hearing the question of whether a final injunction should be granted against the grandmother.

Full judgment found at: https://caselaw.nationalarchives.gov.uk/ewca/civ/2022/1312

Cambridge University Hospitals NHS Foundation Trust & Anor v RD & Ors [2022] EWCOP 47

This case concerns RD, a 26-year-old woman with a very complex diagnosis and a long history of serious self-harm. She has a long history of mental health difficulties and has been diagnosed with Emotionally Unstable Personality Disorder (“EUPD”), Post Traumatic Stress Disorder (“PTSD”) and at some points with psychosis. Since 2021 she has had three periods of detention under the Mental Health Act. She has had many incidents of very serious self-harm which have resulted in admissions to long periods of hospitalisation and admission to Intensive Care Units (“ICU”).

In 2022 RD self-harmed twice, the second requiring a tracheostomy tube to be inserted. The issue of sedation arose. Namely, the clinical team had significant concerns that RD would attempt to pull out her tracheostomy tube if sedation was lightened or stopped completely, leading to a risk of serious harm, death, or asphyxiation.

Following multiple discussions, a Court of Protection hearing was listed for 12^th August 2022. A Care Plan was produced by the clinical team prior to the hearing and the summary can be found at [28].

The Official Solicitor took the position that RD, when capacitous, appeared to wish to live and for the clinicians to save her life, but when gripped by her distress she lost capacity and took action likely to end her life [30]. Expert evidence was heard and RD’s parents spoke at the hearing.

The legal framework for capacity and end of life was outlined and Lieven J concludes that RD lacked capacity when distressed. He sums up the difficulties in this case at [47]. In summary:

“This is not a case where it is possible to rely on the authorities that establish that an adult with capacity can refuse treatment to save her life, because when capacitous RD does say she wishes to live. Further, it will be a very rare case where an adult who at times does not have capacity and who has expressed a will to live is allowed to die. The importance of the sanctity of life, and RD’s own sometimes expressed wishes seem to militate against such an outcome. However, that is the point which this case has reached.”

In concluding, Lieven J stated that:

“… the treatment plan proposed by the Trust is in RD’s best interests, and this includes not restraining her, whether physically or through medication, and not replacing the tube if she removes it. If she does remove it, or indicates she wants it removed, she should be provided with palliative care and as calm and quiet environment provided as possible.”

She found that it was in RD’s best interests for the care and treatment plan proposed and agreed by all parties, to be put in place. She accepted that this may lead to RD’s death. Sadly, RD died on 16^th August 2022 prior to the judgment being published.

Full judgment found at: https://www.bailii.org/ew/cases/EWCOP/2022/47.html

An ICB & RN & TN [2022] EWCOP 41

This case concerns a man, RN, a 22-year-old, who is said to lack capacity to make decisions about whether to receive the vaccine against the virus that causes COVID-19. He lacks capacity due to the nature of his condition, namely, a learning disability and a heart condition, Tetralogy of Fallot.

The issues before the court were two-fold, firstly, does RN lack capacity to make the decision? And secondly, if he does, is it in his best interests to receive the vaccine in line with the vaccination plan set out by his GP.

RN lives with his mother (TN). TN had fears that the vaccine would more than likely cause her son serious harm due to his condition. Two medical experts were instructed and their opinions were considered by HHJ Burrows. Both were of the view that RN should receive the vaccine and the government guidance supported such view.

Relevant case law was considered, including North Yorkshire CCG v E & others [2022] EWCOP 15 and Poole J’s succinct statement of the principles that must be applied in cases alike to this one.  HHJ Burrows disagreed that he should be guided by the “precautionary principle” or that such a principle is part of the assessment of medical best interests. When determining what was in RN’s best interests, he considered the submissions that RN had already had the virus and that he may have immunity. However, he also outlined that this did not negate RN needing the vaccine.

Taking case law coupled with medical evidence HHJ Burrows found that RN ought to have the vaccine as it was in his best interests.

Full judgment found at: https://caselaw.nationalarchives.gov.uk/ewcop/2022/41

Lancashire & South Cumbria NHS Foundation Trust & Lancashire County Council v AH [2022] EWCOP 45

This case concerns a 46-year-old lady Anna (“AH”, not her real name) who suffers from Type 1 diabetes. Provided she is treated properly and consistently with insulin, she can live happily and healthy. If she is not, she is at significant risk of serious harm and even death. The judgment deals solely with the issue of capacity.

After being admitted to hospital suffering acute confusion and high blood glucose she was admitted to critical care. She had been without insulin for several months. At the end of her stay in hospital she was admitted, following an application by the Trust, to a care home for assessment. There were concerns that she would face further health problems as her insulin treatment would be difficult to manage in the community. It was hoped she would only need to be in the care home for a few weeks, following which a care plan in her own home could be formulated. The applicant brought this application on the basis that it is necessary for AH to continue in a care setting possibly in the long term.

To obtain a definitive capacity assessment, the court directed an expert report. The report was obtained to assess capacity for making decisions about the following:

“(i) Conducting proceedings

(ii) Making decisions about residence

(iii) Making decisions about her care

(iv) Making decisions about diabetic care/treatment

(v) Consent to the arrangements giving rise to a deprivation of liberty”

It was recognised that capacity in this case was difficult and there had been differing outcomes to capacity assessments within proceedings.  However, the expert considered that “the inability to recognise, let alone to understand that she has mental health needs due to a combination of learning disability and personality disorder (and perhaps autism) that makes it impossible for her to understand that her own chosen care plan is not feasible”.  HHJ Burrows was persuaded by this report, finding that AH lacked capacity. However, he left the issues of best interests and residence to be determined at a later hearing.

Full judgment found at: https://caselaw.nationalarchives.gov.uk/ewcop/2022/45

Re A (Covert Medication: Closed proceedings) [2022] EWCOP 42

This case concerns closed proceedings at which the Court of Protection has authorised the covert administration of hormone treatment to a young woman without the knowledge of her family. A is the subject of proceedings and B is her mother.

The judgment was dealt with in two parts, dealing with the closed and the open hearings. Part One dealt with the closed proceedings in the Court of Proceedings concerning the covert administration of hormone treatment to A, a 23 year old woman, soon to be 24, who has been found to lack capacity to conduct this litigation or to make decisions about her residence, care, contact with others, and her medical treatment for epilepsy, primary ovarian failure, and vitamin D deficiency. Poole J decided that the administration of covert medication should continue as it was in A’s best interests in the short term. The reasons he gave were in relation to the irreversible advantages it had for A’s physical and mental health. However, looking forward into the long-term required a different approach in light of the disclosure to B of information about covert medication given to A. Poole J reiterated that when devising any plan, everything must be in A’s best interests.

Part Two deals with the question about whether reporting restrictions should remain. Poole J outlined the unique circumstances of the case, namely, that A remained pre-pubescent at the age of 20, was removed from her mother’s care at home and has been administered hormone treatment covertly, which means she has now gone through puberty. He noted that all of these facts combined meant that any person familiar with A who was to read the facts of these case, even if anonymised, would be highly likely to recognise her. He noted that Article 10 of the European Convention of Human Rights was engaged. In September 2022, a Reporting Restriction Order (RRO) in respect of covert medication was ordered.

Poole J outlined that the previous open proceedings had been subject of blogs on the Open Justice Court of Protection Project website. He gave no criticism to the authors of the blogs, however stated that there was a misleading impression that would stand uncorrected if the Reporting Restriction Order (RRO) remained in force. Poole J weighed the risks of A knowing she has and continues to be covertly medicated (and the risk of anyone who knows and can identify A telling her this) versus the need for open justice and convention rights. As a result, he discharged the RRO.

Full judgment found at: https://caselaw.nationalarchives.gov.uk/ewcop/2022/44

Gloucestershire County Council and AB (By Her Litigation Friend, The Official Solicitor), SB and NHS Gloucestershire Integrated Care Board

This application concerns care plans for AB where there is a risk that she will self-harm. These proceedings began by application when AB was 17, but she is now 18.  The local authority granted a further standard authorisation in respect of AB’s care and support available for her. On behalf of AB’s part, the Official Solicitor challenged the following:

“(i) Whether the mental capacity requirement was met

(ii) Whether the best interest’s requirement was met

(iii) Asked the court to consider the period during which the standard authorisation is to be in force

(iv) Asked the court to consider the conditions subject to which the standard authorisation is given.”

In September 2022, the Official Solicitor submitted that an operational duty under article 2 of the European Convention of Human Rights (“ECHR”) had arisen. The operational duty is for public bodies to take reasonable steps to protect AB from a real and immediate risk to her life, not simply in the context of change in policy to self-harm and restraint, but events where AB had consumed noxious substances and medical which required her to attend hospital.

Upon agreement, the parties produced an anonymised order which limits AB’s interest usage when in distress as well as implements she could use for self-harm. As such the standard authorisation was terminated. It was recited in the order that such plans are in AB’s best interests despite interference with her Article 5 and 8 ECHR rights.

Full judgment found at: https://caselaw.nationalarchives.gov.uk/ewcop/2022/42

Newcastle Upon Tyne NHS Foundation Trust and MB [2022] EWCOP 43

This application was brought by Newcastle Upon Tyne NHS Foundation Trust and concerns MB. It relates to the need for urgent medical treatment for suspected T-cell lymphoma and the way in which treatment is administered.

By way of background, MB experienced a deterioration in his mental health in 2021 and following periods of psychosis, he was admitted to a neurology ward at a local infirmary under section 2 of the Mental Health Act 1983 (“MHA 1983”). Following a brain biopsy, it was assessed that MB was likely to have T-cell cancer, a type of lymphoma, of the skin, brain and bone marrow, affecting his central nervous system and the likely cause of his psychosis and delirium. This was a working diagnosis and there was an agreement that his condition required clarification and treatment.

The novel issue in this case is the way in which the treatment would need to be delivered. Those that would be administrating the treatment considered it unsafe to administer the treatment unless MB was sedated, intubated, and ventilated at the time. This would only be possible if MB was admitted to an intensive care unit and the treatment would be undertaken there.

The judge outlined the overarching legal principles of capacity, best interests, the weight to be attached to P’s wishes and feelings at and the views of family members. Morgan J considered relevant factors to be considered at [70] and after reviewing evidence, found that the treatment plan was in his best interests [80]. This was despite the uncertainty in relation to what benefits, if any, MB would receive from such treatment.

Morgan J accepted that if “having the treatment may if successful prolong his life and that the starting presumption is protection of his life; that the right to life carries with it strong weight and that even and although the estimate of success is put at 20 % within the context of Article 2 EHCR that is not negligible. Even the most pessimistic of the evidence before me does not suggest the treatment is futile”.

She was satisfied that when considering MB’s beliefs and values, that MB would wish for treatment to be provided if such treatment afforded him a chance to spend more time with his daughter. As such, she approved the plan and made the declarations and orders sought by Newcastle Upon Tyne NHS Foundation Trust.

Full judgment can found at: https://caselaw.nationalarchives.gov.uk/ewcop/2022/43

Eleanor Suthern is a pupil barrister at Spire Barristers.