Case law update – COP newsletter April 2023
Case law update – COP newsletter April 2023
Here is the round-up of the key Court of Protection cases from the period (September to December 2022, in which we believe our readers will be most interested. Please follow the link within the case summary to access the full judgment and do not hesitate to contact our team to discuss any particular case in more detail. Our Summer newsletter will include a roundup of key cases from the first half of this year, having given the newsletter a short break in the early part of the year.
Adults with disabilities should not be infantilised
TN -v- An NHS ICB & Anor [2022] EWCOP 53 (16 December 2022)
Rachel Kelly Brandreth in our COP Team represented the ICB in this application for leave to appeal the Orders made in the Court of Protection by HHJ Burrows in September 2022 that it was in 22-year-old RN’s best interests to receive the COVID-19 vaccination.
RN’s mother, TN, sought leave to appeal the decision, and that application was dismissed by Mr Justice Hayden before whom the application came.
The proposition advanced by TN was that adults without capacity to specific decisions should be treated like children by allowing their parents to continue to exercise parental responsibility and make decisions about their care and treatment, with only very limited scope for the state to intervene.
This argument was unequivocally rejected by Mr Justice Hayden. He said:
“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….
Children are not chattels of parents. Our domestic law emphasises responsibilities rather than rights. In most situations, a parent will have ultimate responsibility for taking decisions concerning their children’s health, education, and welfare. It is obviously right that this should be the case, but it is not ubiquitously true. Parents do not have absolute rights in respect of their children…..
The Mental Capacity Act 2005 imposes an obligation actively to promote P’s decision taking however limited the sphere might be in which it can be exercised. It also requires assessment of wishes and feelings, even where P lacks the ability to understand, weigh or evaluate the decision in focus. Thus, the law extends the freedoms of adulthood to all adults, which includes the incapacitous. Any other approach would be discriminatory.”
Best interest determinations around vaccinations continue to be a challenge for the Court of Protection, with polarising views generally remaining a live issue to grapple with. The principles in this case equally apply to many other decisions falling to be made under the Mental Capacity Act 2005 and it provides welcome confirmation of the important but not automatically determinative position of parents of adults who lack capacity to make decisions about their health and welfare.
A DoL or not a DoL? That is the question
DY -v- A City Council & Anor [2022] EWCOP 51 (06 December 2022)
This case concerned a young man, DY. The question was whether DY, diagnosed with Autistic Spectrum Disorder should remain subject to a DoLS authorisation when the restrictions, including staff accompanying him whilst accessing the community, were largely in place due to DY’s paedophilia causing risks to others.
Mrs Justice Judd held that though the Mental Capacity Act 2005 (“the MCA”) and DoLs only permit restrictions in P’s own best interests ie not just to protect others, that can be a false dichotomy. She said:
“If he were to reoffend he would be very distressed, and engage in self loathing. There would also be the risk of retribution from the public. I agree with Lieven J in Birmingham City Council -v- SR; Lancashire County Council -v- JTA [2019] EWCOP 28 that it is a false dichotomy to conclude that the protection of P cannot also include protecting him from harming members of the public. As in that case, it is strongly in DY’s best interests not to commit further offences or place himself at risk of further criminal sanctions. In my judgment this falls squarely within the meaning of the qualifying requirement in paragraph 16 schedule A1, ‘to prevent harm to the relevant person’. That this harm would come about by his harming others does not detract from this.”
However, the MCA and DoLS framework only permits intervention in DY’s best interests if he lacks capacity for the relevant decisions. The judge here accepted evidence of the single joint expert (contested by the local authority) that DY had capacity to make decisions about his care. The local authority submitted that DY makes “contradictory statements about his need for care and supervision, that he was inclined not to think things through and that fact that he can overestimate his abilities”.
In doing these things, the judge said, “DY is no different from many people who do have capacity. People with capacity can make unwise decisions and act on impulse”.
The judge determined that any further offending risk was a matter for the Criminal Justice System and not the MCA or Court of Protection.
The case highlights the often finely balanced nature of capacity assessments and that professional disagreements do arise. The judge recognised the legitimate concern about the risks posed to DY through the risks he posed to others but as he had the relevant decision-making capacity, the DoLS authorisation had to be terminated and the existing care package became something to be offered to DY, which the judge hoped he would accept, but which could not be forced upon him.
Issues of autonomy and fluctuating capacity
This, as described by Mrs Justice Lieven (“the judge”), was a particularly tragic case concerning RD, a 26 year old woman with a very complex diagnosis and a long history of serious self-harm. The judge held three hearings in the case on 3, 5 and 12 August 2022 and made a final order, including a care and treatment plan agreed by all the parties, at the last hearing.
RD had a long history of mental health difficulties and had spent significant periods in psychiatric units since the age of 15, frequently being detained under the Mental Health Act 1983 (“MHA”). Since 2021 RD had had three periods of detention under the MHA.
RD had been diagnosed with Emotionally Unstable Personality Disorder, Post Traumatic Stress Disorder and at some points with psychosis. RD felt driven to hurt herself because of alleged adverse earlier experiences and the impact on her mental health had been profound, long lasting and highly resistant to any treatment.
The question of RD’s capacity to make decisions in relation to treatment was not straightforward. Ultimately it was accepted that her capacity fluctuated and that when she became distressed she could no longer make the relevant decision about her treatment.
After hearing complex and detailed evidence, including from RD’s parents on the historic and perpetuating nature of RD’s patterns of illness, it was determined to be in RD’s best interests not to be restrained, physically or through medication, and for palliative care to be provided if she were to remove her tracheostomy tube or indicate that she wanted it to be removed.
Sadly, RD further self-harmed and died on 16 August 2022.
The judgment is very much worth reading in full, partly because it grapples with the issues of autonomy and fluctuating capacity, but also on a practical level, as it involves the implementation of what would have been a complex care plan.
Care orders - threshold criteria and parental human right
Lancashire County Council -v- M & Ors [2022] EWHC 2900 (Fam) (27 October 2022)
Amy Clarke in our COP Team represented the ICB in these proceedings in the Family Division of the High Court brought by the Local Authority.
The proceedings concerned W, who is 13 years of age and suffers from multi-system problems, arising from a rare gene mutation. His needs are complex and he requires care 24-hours a day, 7 days a week.
The background to the Local Authority’s application is lengthy but in summary, the care proceedings arose following a breakdown in the relationship between W’s parents, W’s care providers and the responsible public funding bodies.
Dr Kate Hellin, Consultant Chartered Psychologist and Psychotherapist, produced a report recommending a form of systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory.
The application came before Mr Justice Hayden in October 2022. The Local Authority sought permission to withdraw the care proceedings and the application was supported by W’s Guardian and each of the parties in the case, including the ICB as an intervenor, save for W’s parents.
W’s parents invited the court to refuse the Local Authority’s application to withdraw the care proceedings. The parents had applied for declarations within the care proceedings, pursuant to Section 7(1)(b) of the Human Rights Act 1998 that both the Local Authority and the ICB proposed to act in a way which was incompatible with their Article 8 rights (right to private and family life), by “implementing a care package in which the burden placed on the parents generated a situation in which W’s safety was compromised” - denied by the Local Authority and ICB. The ICB submitted that “W’s parents’ strategy had become a device to encourage the Family Court to drift away from its statutory moorings and become lured into ‘dictating’ how independent agencies exercise their powers.”
Mr Justice Hayden recognised the dedication of W’s parents to W and the anxieties they had about the yet to be tested care package. However, he was not prepared to allow a care order to remain in place when the threshold criteria were no longer met, essentially to create a hook upon which his parents could hang their Article 8 claim. He said:
“A Care Order imposes on a Local Authority a raft of statutory obligations, which it is unnecessary to rehearse here. The sharing of parental responsibility with parents involves a Local Authority assuming a significant and, in many cases, predominant share of parenting responsibilities. Inevitably, this generates both expense and time. Sometimes, it will be expedient for a Local Authority to seek to discontinue proceedings. For this reason, it is recognised that the decision must always be a determination of the Court. It follows that the Court is required to analyse the evidential basis of the application when determining to grant permission. Cobb J encapsulated the test to be applied in J, A, M and X (children) [2013] EWHC 4648 (Fam), concluding that the Local Authority’s inability to satisfy the threshold criteria should be “obvious”.
Mr Justice Hayden was keen to emphasise the importance of the systemic intervention work. The case also crystallises what the role of the court is, and is not, in these types of situations and how continued litigation is often inimical to achieving progress.
Hoarding: capacity and best interests
AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39 (15 August 2022)
An application for an order in 2020 was made that AC, who was at the time of the application 92 years old, be moved from her home (where she lived with her son, GC) to a respite placement to allow for issues of hoarding and cleanliness of the property where she lived to be addressed and the property made safe including whether AC should return and receive care at home for a trial period.
The Local Authority was concerned about the level of risk posed to AC by GC’s hoarding behaviour (the parties agreed that he lacked capacity to make decisions about his own belongings).
The case is particularly helpful as it provides a checklist of “relevant information” for the purposes of assessing P’s capacity to make decisions in relation to managing/storing their belongings:
(a) volume of belongings and impact on use of rooms;
(b) safe access and use;
(c) creation of hazards;
(d) safety of building; and
(e) removal/disposal of hazardous levels of belongings.
The judge determined that whilst a trial at home was not without risk, the risk was manageable and was one which should be taken.
Appended to the judgment was a proposed list of conditions for a trial placement at home, which will provide useful practical guidance to all those professionals who encounter these challenging situations on a day to day basis.
