Court of Protection case review: January 2023

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

F v R [2022] EWCOP 49

Full judgment: https://www.bailii.org/ew/cases/EWCOP/2022/49.html

This was a best interests decision resulting from an application by R’s father for authority to execute a deed of settlement so that an inheritance which R has been left in the will of a relative (T) absolutely, is instead held for him in a disabled person’s trust.

By way of background, R is in his thirties with a lifelong disability, and it was agreed he lacked capacity. T, his mother’s cousin, died three years ago and left a third of his estate to R absolutely (within the region of £400,000-£600,000). The application is made on behalf of R’s father who is also his property and affairs deputy, having been appointed in February 2022. The underlying basis of the application was that this change would best match T’s intentions and mean R’s means tested benefits would be protected.

The OS (acting as R’s litigation friend) took a different view, agreeing that there would have been a considerable advantage to R if T had placed the inheritance in trust as the funds would be disregarded. This did not happen.

HHJ Hilder considered the parties’ positions and reviewed the relevant case law, including SM v HM [2012] COPLR 187 and Watt v ABC [2016] EWHC 2532.

The application was refused for the following reasons:

Firstly, there was no indication that T had sought to preserve R’s benefits, rather he was happy with the prospect that management of any bequest would be conducted by R’s parents as his deputies [paragraph 41].

Secondly, the structure of the proposal has real disadvantages to R when compared to a deputyship. Specifically, there would be no security bond as protection, leaving open the potential for adverse tax consequences [paragraph 44].

Thirdly, the Court cannot bind the local authority or the DWP in respect of the benefits implications of the proposal [paragraph 46]. Nor can the court endorse a proposal whose purpose is to preserve an eligibility for benefits which Parliament has decided does not exist [paragraph 51].

Both the judge and the OS understood why the application had been made but noted that “the Court has to make its decisions on the basis of what is known actually to have happened, rather than what might have happened.” The judge made reference to the “significant risk that this proposal will not be effective in its own terms” [paragraph 52].

TN & NHS ICB & RN [2022] EWCOP 53

Full judgment: https://caselaw.nationalarchives.gov.uk/ewcop/2022/53

This case concerns an application for permission to appeal orders concerning whether a 22-year-old should receive the covid vaccine, despite his mother vigorously opposing it. In the judgment under appeal (An ICB & RN & TN [2022] EWCOP 41) Hayden J identifies the central ground of appeal being that HHJ Burrows erred through an incorrect application of Article 8 ECHR and parental rights and that “the logic of this proposition of law is that if a child lacks capacity to understand, the parental right for the protection of the child continues” [paragraph 21].

At paragraph 19, Hayden J describes this as “predicated on an elevated construct of parental rights”. The judge outlined that “an adult who lacks capacity is not and should never be treated as a child. That paternalistic approach has long ago been consigned to history and recognised for what it is, a subversion of adult autonomy” [paragraph 22].

The judge outlined that the arguments advanced on behalf of the mother in terms of individuals choosing “their own good” [paragraph 24] were rooted in her own best interests, rather than RN’s. The judge also rejected a request for further expert witnesses [paragraph 29].

Hayden J therefore dismissed the application to appeal [paragraph 31].

The judge concluded the case by outlining that “I do not doubt that the mother will be disappointed by this and whilst I consider the Judge was entirely right to rely on the established empirical conclusions underpinning the guidance, I respect the sincerity and strengths of her beliefs” [paragraph 32].

SV, Re [2022] EWCOP 52

Full judgment: https://www.bailii.org/ew/cases/EWCOP/2022/52.html

This judgment gives reasons for allowing an application for an order recognising and declaring enforceable protective measures for a protected person (SV) from the Republic of Ireland. The measures require SV’s placement at a specialist eating disorder unit in London, with no comparable unit in Ireland [paragraph 1].

The issue was that The Hague Convention of 13 January 2000 on the International Protection of Adults (“the 2000 Convention”) was signed by both the United Kingdom and the Republic of Ireland, however, it had not been ratified by the Republic of Ireland. It had only been ratified by the UK for Scotland only. The issue that required determination was the legal basis for making the reciprocal order requested by the Irish authorities, put simply, “how is this application possible?”.

Mostyn J gave the answer, namely, that the United Kingdom Parliament implemented the 2000 Convention for England and Wales in Section 63 of and Schedule 3 to the Mental Capacity Act 2005 [paragraph 13]. This implemented the Convention without the need for ratification procedures, although Mostyn J continues by outlining that “disadvantage is that implementing the 2000 Convention by this route did not, of course, give rise to reciprocity. It did not have the effect that protective measures made here would be automatically recognised and enforced overseas, even in those countries operating the Convention.” [paragraph 15].

Mostyn J granted the application due to the urgency of the matter, with SV being “extremely unwell and in a placement which is unsuitable for her extensive and complex needs”. The judge noted that it was “plainly imperative” that SV was moved to a suitable placement [paragraph 50]. The judge annexed a checklist to assist in future decision making of similar cases.

Lancashire & South Cumbria NHS Foundation Trust & Lancashire County Council & AH [2023] EWCOP 1

Full judgment: https://caselaw.nationalarchives.gov.uk/ewcop/2023/1

This case concerns a best interests’ decision in relation to AH, a female who may die if she mismanages her diabetes, but who wishes to return home from her current placement where she is unhappy.

AH was the subject of a previous judgment, which can be found at: https://caselaw.nationalarchives.gov.uk/ewcop/2022/45.

In this judgment, HHJ Burrows had to determine AH’s best interests, the decision of whether she should stay in her current placement where her medication is properly administered or whether AH can return home and her medication can be administered by District Nurses. AH wanted to return home. No submissions were made that it would be in her best interests, instead, that they are clear and consistently expressed wishes and feelings [paragraph 12].

The judge in earlier proceedings, the arrangement approved was that AH would remain in her placement, with the allowance of being allowed out during the day and have one stay per week at home [paragraph 15]. This approach was considered against the rental costs and placement costs.

HHJ Burrows was referred to and considered Re M (Best Interests: Deprivation of Liberty) [2013] EWHC 3456 (COP) where Peter Jackson J comments: “The right to life and the state’s obligation to protect it is not absolute and the court must surely have regard to the person’s own assessment of her quality of life.” HHJ Burrows considered this the “nub of the matter in this case [paragraph 33].

The judge assessed the options of either staying in the placement or returning home, both would have to be on a full-time basis. He reminded himself of there being no presumption of a return home under Article 8 ECHR (following K v LBX [2012] EWCA Civ 79 (at [63])) [paragraph 40].

HHJ Burrows concluded that it would not be necessary for AH to reside in Placement 1. In her own home she would receive social care and be able to access the community with or without support. The judge outlined the serious risks, including the risk of death. However, in paragraph 65 he stated that AH “has the right to her liberty and to remove it from her would be a devastating blow to her and would not properly recognise her right as a disabled person to be afforded respect and dignity for the way she wishes to live her life’.

DY & A council & A NHS Trust [2022] EWCOP 51

Full judgment: https://caselaw.nationalarchives.gov.uk/ewcop/2022/51

This case is an application to determine whether DY has capacity to decide on his care and support arrangements in circumstances where his sexual behaviour may pose a threat to the public and current authorisation for deprivation of liberty is due to expire.

DY is a man in his 20’s who has complex needs with a diagnosis with ASD and lives in accommodation provided by the respondent City Council. DY has been the subject of care proceedings shortly after his birth and resulted in a care order being granted on the basis of his returning home to live with his parents. When DY was 10 he demonstrated sexualised behaviour and self-harming.

DY plead guilty to two sexual offences and was placed on the sex offender register for 5 years with a concurrent Sexual Harm Prevention Order (expiring in March 2023). He remains prohibited from having contact with children under 16 by his placement and is always accompanied by male staff when he is in the community. He is checked four times a night due to his is sexualised behaviour and self-harm, and he is not allowed to enter bedrooms other than his own in his placement.

Shortly before the hearing, the respondents conceded that DY does have capacity in relation to conducting these proceedings, contact, sexual relations and social media.

The issue for the court to consider is whether DY did have capacity to decide on his care.

In deciding this, HHJ Judd reviewed the expert witness report who following interviews, concluded that DY was honest about the risk he posed and “able to set out a level of care that he believed would be both sufficient, beneficial and would balance his own wishes for a greater degree of autonomy and independence with an umbrella of oversight and protection.” [paragraph 30]. Upon being cross-examined, he emphasised that “DY has an understanding of his offending, his victim profile and consequences of offending and that there is no suggestion he would be unable to plead in a criminal trial.”

Whilst recognising the concerns raised by the respondents, she terminated the Standard Authorisation [paragraph 36] and stated: “The truth is that most sexual offenders and risky adults have capacity, and, like DY are not to be managed by a Deprivation of Liberty within the provisions of the Mental Capacity Act 2005.” [paragraph 35]. The judge confirmed that DY would be offered the same care package he now has and would be strongly encouraged to continue to be accompanied when in the community. She reiterated that whilst this was simply an offer, she hoped DY would accept it [paragraph 36].

Eleanor Suthern is a pupil barrister at Spire Barristers.