Court of Protection Newsletter

February 2024

8 February 2024

Welcome to another edition of our COP newsletter.

I am sure that most will have spotted that on 29 January 2024, the Transparency Reporting Pilot (launched last year in Cardiff, Leeds, and Carlisle) was extended and came into effect in a number of other court centres, including the Family Courts at the Central Family Court, East London and West London. The pilot introduces the presumption that accredited media and legal bloggers may report on what they see and hear during family court cases while adhering to strict rules of anonymity with judges continuing to make transparency orders as to what can and cannot be reported. You can find out more here.

Following hot on the heels of that announcement, is another reminder this week, of the need to pay heed to the practice guidance issued four years ago by Hayden J on when applications relating to medical treatment should be made and by whom. Do please familiarise yourself with the guidance, which whilst guidance, should be followed as a matter of good practice. The expectation is and remains, that where there is dispute as to P’s best interests, it will be the Trust who will bring the application to court and not family members as happened in GUP -v- EUP and UCLH NHS Foundation Trust [2024] EWCOP (25 January 2024). However, this case has raised interesting questions about the extent to which the guidance applies when clinicians are not willing to offer life-sustaining treatment and it is therefore not an available option upon which the court is entitled make a best interests decision. Keep an eye out for our in depth analysis of the case.

And finally, do please keep an eye out for your invite to our next MCA/DOLS webinar which will take place on 12 March 2024 at 10 am. We will be shining a spotlight on capacity in relation to sexual relations, discussing withdrawal of treatment cases involving children and finish with a more practical session and round up of some common pitfalls and best practice points in bringing Court of Protection applications. Hope to see you there and in the meantime, happy reading.

Round-up of key cases

Case Law Update – Key COP cases between August – December 2023
Here is the round-up of the key Court of Protection cases from the period August – December 2023, 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… Read more.

News and Views - what you need to know

Considering capacity without a diagnosis and lifting a transparency order
This case concerned Sudiksha Thirumalesh (‘Sudiksha’), a 19 year old woman who had an extremely rare mitochondrial disorder for which there is no cure. Sudiksha was admitted to hospital in August 2022 and treatment became steadily more invasive and extreme. The collective view of her treating hospital clinicians was that she was ‘actively dying’ and they considered palliative care appropriate. However, Sudiksha wished to… Read more.
Brain Stem Testing Disputes
The judgment of MacDonald J in St George’s University Hospitals NHS FoundationTrust v Casey & Ors [2023] EWHC 2244 (Fam) confirmed that where there is a dispute over whether brain stem testing should be undertaken, an application to Court should be made. Permission to appeal was subsequently sought by… Read more.
In case you missed it

Withdrawal of treatment and the burden of interventions
We acted for the trust in the tragic case of King’s College Hospital NHS Foundation Trust -v- X & Anor [2023] EWCOP 34 , which concerned a young man (‘X’) who suffered catastrophic brain injuries and spinal damage following a car accident. These injuries resulted in him being in a persistent vegetative state with no function above or below the brainstem, and no prospect of recovery… Read more.
Determining the weight of religious values and beliefs in an application for withdrawal of life-sustaining treatment
In Northern Care Alliance NHS Foundation Trust -v- KT and Others [2023] EWCP 46, Mr Justice Hayden found, unequivocally, that KT: ‘…would not have wished his life to be brought to an end in the circumstances the Trust consider meet his best interests. He would rather suffer and hold out for the will of God… Read more.
The Last Court of Appeal judgment in the tragic case of Indi Gregory
The last Court of Appeal judgment from the case of Indi Gregory raises an important point about how these cases are handled. Peel J decided on 7 November that withdrawal of treatment should take place in hospital or a hospice, and Indi’s father sought permission to appeal that decision… Read more.
Disagreements in the Care of Critically Ill Children, An Independent Review – Nuffield Council on Bioethics
In December 2022, the Nuffield Council on Bioethics was commissioned by the Secretary of State for Health and Social Care to undertake an independent review (the review) of the disagreements that arise in the care of critically ill children in England… Read more.