Case law update

Case Law Update – Interesting Cases from 2024

Rotherham and Doncaster and South Humber NHS Foundation Trust -v- NR & Anor
[2024] EWCOP 17

Date of Judgment: 8 March 2024

NR is 35 years old, 22 weeks pregnant and has an extensive history of drug and alcohol abuse. This is her 5th pregnancy, and she was reported to have two daughters  in care. NR was at the time detained under s3 of the MHA in a psychiatric hospital but decisions about termination of pregnancy are governed by the MCA, because they are not treatment for a mental illness. 

There were two key questions: 

1. For the doctors - whether the requirements of the Abortion Act 1967 were met (which they were); and

2. For the court - whether NR lacked capacity and if so whether a termination was in her best interests / lawful.

Mr Justice Hayden was satisfied from the psychiatric evidence that NR lacked capacity to consent to a termination of pregnancy. Analysis of NR’s wishes and feelings was far less straightforward as she was “paralysed by conflict” and had made many contradictory comments about whether she wanted to keep the baby or have a termination. Throughout the hearing the care plan had evolved and emphasised the importance of helping NR to reach her own decision, with an emphasis on her autonomy. 

Hayden J declined to declare that a termination would be in NR’s best interests, but instead confirmed that the care plan was lawful so the final decision as to whether to have a termination would rest with NR, within the structure of the care plan.

Irwin Mitchell Trust Corporation -v- PW & Anor [2024] EWCOP 16 

Date of Judgment: 19 March 2024

PW is married and has 4 adult sons. Her life drastically changed in 2005 when she contracted viral encephalitis, leading to global cognitive impairment. A damages claim was brought against the treating trust and a substantial settlement reached. 

Irwin Mitchell Trust Cooperation (IMTC) was appointed as PW’s property and affairs deputy. In that capacity, IMTC appointed Irwin Mitchell Asset Management (IMAM) to manage the investment of PW’s funds. There is a clear corporate link between IMTC and IMAM - see image helpfully provided within the judgment which demonstrates this.

The application was brought by the Official Solicitor after concerns were raised in separate COP proceedings regarding PW’s will. 

The relationship between a deputy and the person they are appointed for is a fiduciary one, and the law is clear that a person in a fiduciary position must not put himself in a position where his interest and duty conflict. This goes back to the 1854 case of Aberdeen Railway v Blaikie, where Lord Cranworth LC said: “And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect.”

There were two key questions for HHJ Hilder to address:

1. Whether the conflict of interest rule applied to the appointment by IMTC as deputy of IMAM as asset manager for PW’s funds: i.e. would a reasonable man looking at the relevant facts and circumstances of this particular case think there was a real sensible possibility of conflict?

2. If it did, whether the Court should then authorise the appointment of IMAM with retrospective effect?

IMTC accepted that the engagement of IMAM gives rise to a “theoretical potential” for a conflict of interest, but argued there is no “real sensible possibility” of conflict because of procedures put in place. 

An independent financial advisor was jointly instructed by the parties and evidence was also provided by 3 professional deputies. None of those deputies expressed support for instructing a related investment manager, as IMTC had done. The Official Solicitor’s position was that appointing IMAM involved a stark conflict of interest. 

In her judgment, HHJ Hilder found that in relation to question 1: “there remained a very clear, not remotely fanciful, actual conflict of interest in IMTC appointing IMAM to manage PW’s funds”. The conflict of interest was that Irwin Mitchell Group gains financially from this arrangement. 

HHJ Hilder was unable to answer question 2 as there was insufficient evidence before her on this issue, and the parties were invited to agree further directions.

This is an important judgment about conflicts of interest arising when professional deputies are appointed and has potentially significant ramifications.

Re A (Covert Medication: Residence) [2024] EWCOP 19 

Date of Judgment: 20 March 2024 

A is a 25-year-old woman with mild learning disabilities, Asperger’s syndrome, autism spectrum disorder, and epilepsy. A was brought up by her mother B and home schooled, leading a socially isolated life.  Court of Protection proceedings had been initiated due to her incapacity to make decisions concerning her residence, care, contact with others, and medical treatment. 

At 18 she was diagnosed with Primary Ovarian Insufficiency (POI) and hormone replacement therapy (HRT) was recommended. Without which, she would not go through puberty, would suffer significant physical and mental health problems and be at risk of premature death. A refused to accept HRT, which seemed to be because of B’s influence. It was in this context that HHJ Moir previously ordered A to be removed from B’s care and placed in a care home, and for HRT to be given covertly.

The application before HHJ Poole stemmed from B wanting A to return home, which was opposed by the Local Authority, the NHS Trust responsible for A’s care, and the Official Solicitor acting for A. 

 Poole J provided an extensive analysis of A’s best interests regarding her residence and medical treatment, noting the intricate relationship between A’s living arrangements and the continuation of her medication covertly.  He considered that all options were fraught with risk. 

B’s case was that A should return home for a 12-week trial where B would apparently convince A to take HRT. B’s evidence lasted a whole day and Poole J found her to be an evasive witness who “lived through her daughter to an extreme degree”. He also found B to be heavily responsible for A’s isolation and lack of physical, mental, and social development. 

Any return home would therefore mean a return to an enmeshed relationship with her mother that was likely to expose A to the risk of harm in the future, including from not taking HRT. It would however meet A’s strong wishes and end the continued deprivation of liberty, infringement on her autonomy and restore full respect for family and private life. 

The LA suggested a move from the care home to supported independent living (SIL) should be considered which was supported by the OS, so the options before Poole J were for A (a) continue to live at the care home with the possibility of moving to SIL at some point; or (b) returning to live with B.

Keeping A at the care home would allow covert medication to continue and some protection from some of the harmful aspects of her enmeshed relationship with B as well as continued educational and therapeutic work. That being said, it was noted that A had been removed from home almost 5 years previously and her behaviour and attitudes had not changed significantly since. She was being deprived of her liberty, medicated against her will and her wishes were not being met. 

Poole J was satisfied that it was in A’s best interests for her to return home to B’s care, for covert medication to cease and for A to be encouraged to take HRT voluntarily. This case underscores the delicate balance courts must maintain between respecting an individual’s autonomy and ensuring their best interests. 

King’s College Hospital NHS Foundation Trust -v- South London and Maudsley NHS Foundation Trust & Anor [2024] EWCOP 20

Date of Judgment: 10 April 2024

This case concerned GF, a 60-year-old with a history of paranoid schizophrenia, suffering from severe ulcers on his right leg due to vascular occlusion. The ulcers became infected, and despite treatment with intravenous antibiotics, his condition did not improve, leading to a proposed above-knee amputation to prevent further deterioration and potential death. The case was brought to determine GF’s capacity to consent to medical treatment and to decide on the lawfulness and appropriateness of the proposed treatment. 

Henke J declared that GF lacked capacity to conduct the proceedings and make decisions regarding his medical treatment based on evidence of his impaired mental function due to paranoid schizophrenia. GF’s medical condition was extensively discussed, noting his leg’s irreversible necrosis and the imminent risk of sepsis without surgery. Despite his inconsistent willingness to undergo surgery, influenced by his delusional beliefs, the multidisciplinary team recommended urgent amputation above the knee as the only viable treatment to save his life. Henke J determined this to be in GF’s best interests and authorised the treatment. 

The court’s decision reflects a balanced consideration of GF’s health needs, his personal views, and the medical advice, aiming to preserve his life in the face of serious medical challenges. 

Re J (Blood Transfusion: Older Child: Jehovah’s Witnesses) [2024] EWHC 1034 (Fam)

Date of Judgment: 15 April 2024

This case concerned the refusal of an application to provide blood products without the consent of a capacitous 17-year-old. 

J was noted to be an “intelligent, engaging and thoughtful” 17-year-old Jehovah’s Witness. He was due to undergo surgery for removal of an obstruction in the ureter leading from his left kidney (and consented to the procedure), but it carried a risk of blood products being required which J did not consent to because this would be at odds with his religious beliefs and cause him “lifelong social, mental and spiritual harm”. 

J had purported to make an Advance Directive refusing blood products under any circumstances (but this is only legally binding for those aged 18 and over).

There was no doubt that J was able to make his own decisions about his medical treatment (the court expressed it in terms that he was Gillick competent), therefore the Trust’s application was brought under the High Court’s inherent jurisdiction for a declaration that it would be lawful to treat J with blood products in the event of an emergency during surgery. Although the risk was small, the treating doctor provided powerful evidence stating, “I don’t want to be standing in the operating theatre watching a child die, when I could do something about it.”

Having considered J’s welfare in the widest sense, and balancing the preservation of life with J’s personal autonomy, the court refused the Trust’s application and concluded “it is in J’s best interests for his own decision to refuse the administration of blood or blood products in surgery to prevail”. 

There is an interesting discussion about how J’s case goes against the grain of previous cases of a similar nature in which the courts have typically authorised lifesaving treatment for capacitous young people - in particular the Court of Appeal case of Re E&F [2021].

J’s surgery went ahead without complication.

HC Re [2024] EWCOP 24

Date of Judgment: 25 April 2024

The case pertains to HC, a 27-year-old woman with significant mental health challenges, primarily anorexia and associated mental disorders. Proceedings were initiated by Leicester City Council and the Leicester and Rutland Integrated Care Board concerning HC’s care arrangements and her capacity to make decisions regarding her living and care conditions.

The evidence presented suggested that HC’s mental health disorders significantly impaired her ability to process information and make informed decisions. Ms. Victoria Butler-Cole KC, sitting as a deputy high court judge, concluded there was reason to believe HC lacked capacity to decide where to live and receive care, fulfilling the requirements of s.48(a) MCA 2005. 

Given HC’s immediate need to relocate due to the termination of her placement at K House, the court examined what would be in her best interests. Moving HC to D House, a proposed new placement, using physical restraint if necessary was considered, though deemed inappropriate due to HC’s severe distress and self-harming tendencies. HC’s relationship with her father, RC, was a focal point as another option was for her to return to live with him temporarily. Despite RC’s protective stance towards HC, there were concerns about his influence and the potential negative impact on HC’s ability to make independent decisions. 

The court decided not to force HC to move to D House against her will, acknowledging the potential for exacerbating her mental health issues and that physical restraint was neither necessary nor proportionate at this juncture. Instead, the court consented to HC moving to D House if she agreed after understanding all relevant details about the new placement. Alternatively, HC could temporarily return to live with her father with a care package. 

Additional evidence from the statutory bodies was required and the case was due to be listed for further directions within a short timescale. 

The court’s approach highlighted the importance of respecting HC’s autonomy while ensuring her safety and well-being and illustrates the delicate balance courts must maintain between legal criteria for capacity and the practical implications of care decisions on an individual’s life. 

This article was authored by Ardela Abdiaj.