2011 07 Incapacity

Monday 1 August 2011

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PH (by his litigation friend the Official Solicitor) v A Local Authority and others [2011] EWHC 1704 (Fam) (Baker J): PH was a 49-year old man who suffered from Huntingdon's Disease (HD). The Court was asked to determine whether he lacked capacity to decide whether he should remain in residential care in order to be given care and treatment and whether he had capacity to make decisions concerning his residence and care. The Court directed itself as to the principles to be applied. It held that it must guard against imposing too high a test of capacity because to do so would run the risk of discriminating against persons suffering from a mental disability. It rejected a submission that the statutory test should be construed narrowly. It also directed itself that the Court should be aware of the risk that professionals involved in treating or helping a person may be drawn towards a particular outcome and fail to carry out a detached and objective assessment of capacity. It found no evidence of any lack of objectivity on the part of the treating professionals. It heard evidence from an independent consultant neuro-psychiatrist, from a consultant in old age psychiatry experienced in working with patients with dementia who was treating PH, from the GP at the residential home also experienced in caring for patients with HD, from a GP who was also an independent DOLS assessor and from PH's social worker. Save for the neuro-psychiatrist, who was not treating PH, all of the professionals gave evidence that they believed PH lacked capacity. The Court found that PH manifestly did not have the ability to understand, retain, use or weight up information relevance to the decision as to his future residence. Click here for the transcript (lawtel subscribers only).

P (by his litigation friend the Official Solicitor) v Independent Print Ltd and others [2011] EWCA Civ 756, CA, (Ward LJ, Carnwath LJ, Tomlinson LJ): P was a 26-year old man who lacked capacity and suffered from severe uncontrolled epilepsy. The proceedings concerned a dispute between the Primary Care Trust, supported by the local authority and the Official Solicitor, and P's mother over whether P should be provided with independent living accommodation with limited contact to his mother or should resume living with her. In December 2009, Hedley J had decided that P should live independently from his mother with some limited contact with her. The Court was to review the position in December 2010. The Independent Newspaper applied for permission to attend the review hearing and report it. The application was not served on the parties and they only became aware of it when they attended for the review hearing. Hedley J considered and allowed the Independent's application to report the hearing subject to the parties continuing to be anonymised. The Independent duly published a report. The Official Solicitor appealed. The Court of Appeal dismissed the appeal. Hedley J's decision to determine the application on the day, rather than adjourning it, was sensible and pragmatic. The Court of Appeal declined to give guidance as to how applications by the media should be managed. On the substantive application, the Judge had correctly applied a two-stage process: was there a good reason why the media should be permitted to attend and then the appropriate balance between Article 8 and Article 10. He was not wrong to hold that this case was an unusual example of the vivid way the powers of the court can be exercised to remove a disabled young man from the care of his mother and that there was continuing public interest in the eventual outcome. The grant of permission would not open the floodgates because each case must be decided on its individual merits and the prevailing presumption of no invasion of the privacy of the proceedings should prevail unless good reason is shown in any individual case. Click here for the transcript.

Court of Protection Guidance: applications to the Court of Protection in relation to tenancy agreements (22 June 2011): if a person lacks the mental capacity to sign a tenancy agreement, and no deputy has been appointed, an application should be made to the Court of Protection for authority for a deputy to sign or terminate a tenancy agreement. Click here for the guidance.

A Local Authority v DL, ML, GRL, and JP [2011] EWHC 1022 (Fam), (Theis J): the Court was asked to consider whether it retained inherent jurisdiction in respect of vulnerable adults. Before the coming into force of the Mental Capacity Act 2005, Munby J had defined vulnerable adults as those who, even those not incapacity by mental disorder or mental illness, are or are reasonably believed to be deprived of the capacity to make a relevant decision, exercise free choice or give or express real and genuine consent because they are either under constraint or subject to coercion or undue influence or for some other reason. Theis J held that the inherent jurisdiction can still be invoked. Each case will have to be carefully considered on its own facts but if there is evidence to suggest that an adult who does not suffer from any kind of mental incapacity that comes within the MCA but who is, or is reasonably believed to be, incapacitated from making a relevant decision by reason of constraint, coercion, undue influence or other vitiating factors, that adult may be entitled to the protection of the inherent jurisdiction. The mere existence of the jurisdiction does not mean it will always be exercised. Click here for the transcript.

SMBC v WMP, RG and GG (by their litigation friend the Official Solicitor) and HSG and SK SKG [2011] EWHC B13 (COP) (HHJ Cardinal): In the autumn of 2010 West Midlands Police sought forced marriage protection orders with regard to three brothers in the G family of whom the applicant [HSG] in this case is one, the others being RG and GG. The cases of the three brothers were listed together. All three were said to have varying degrees of learning difficulty and had been or were under threat, it was said, of forced marriage. HHJ Cardinal granted the injunctions sought but he was somewhat surprised that they were sought by the Police when it seemed to the judge that there ought to have been applications before the court by SMBC and that those applications in reality ought to be in the Court of Protection. The judge joined the Local Authority and made directions [including an inquiry as to why the case was not before the Court of Protection] which led to the cases presently brought in this Court. In the applications before the court Local Authority sought a declaration inter alia as to the capacity of HSG to marry and to deal with complex financial matters. West Midlands Police remain a party but have been informed with the agreement of all that they need attend no hearings unless and until required so to do. HSG's application to be discharged as a party in a forced marriage protection order case was refused because there was good cause to believe that he may lack capacity as in the test for interim orders. HHJ Cardinal set out a list of lessons learnt for future cases.

“57. There are I think a number of lessons that can and should be drawn from this difficult application:

i. An expert as a matter of good practice ought in my judgement to seek clarifications and raise questions under Rule 129 Court of Protection Rules 2007 before completing a report referring to lacunae in the information before him.

ii. A social worker investigating capacity ought to keep a party's solicitor informed of his intention to interview that party and not just proceed.

iii. It is right to conclude that a party may lack capacity [and thus the test in Re F is met] if there are significant and important gaps in the history and therefore the knowledge of the expert examining that party and there is evidence which may well point to incapacity in the relevant regard.

iv. It is unhelpful for a doctor [in this case a GP] to descend to vague expressions such as mental health issues in a report he/she knows is to go to the court.

v. It is not in my judgement an improper interference with the human or common law rights of a party for a medical expert to be provided with educational health and other records to enable him to complete his inquiries.

vi. I do not accept that psychometric testing is so intrusive as to be an improper test to apply to someone on the borderline of capacity even where he is reluctant to undertake them.

vii. If a solicitor acting for the Official Solicitor discusses the case with a joint expert orally or in writing the instructing parties should be provided with a copy of that communication or attendance note of that conversation."

For transcript click here.

Re C; C v A Local Authority and LM and LPM and the PCT and an Organisation[2011] EWHC 1539 (Admin) (Ryder J): C, now aged 18, had been resident in a special school since 2007. His care included 24 hour support with a 2:1 staffing ratio. Management of his behaviour at the school included use of a padded room of about 10 feet square with a secure door that would be held closed by the carers - “the blue room” - where he was secluded. The evidence was that this room was used very frequently, for example more than 6 times a day on average in one month, often as a way of dealing with C’s propensity to be naked.

In September 2010, C’s mother and brother brought judicial review proceedings to challenge alleged failures by the local authority to plan or provide for C’s care properly, including appropriate arrangements for his transition to an adult placement at age 18 years. At the same time, the local authority started Court of Protection proceedings for declarations about C’s best interests and lawfulness of the care arrangements.

Many of the issues between the family and local authority were resolved by agreement before the court gave judgment. In particular the information / documents that the family had been refused initially were all disclosed voluntarily, and the authority undertook the care and transition planning required by the Children Act and associated legislation, which it accepted it had failed to do previously. There will be a future hearing to determine whether there was any breach of C’s right under Articles 3, 8 and issues of compensation for the breach of Article 5 (unlawful deprivation of liberty). Ryder J identified the following issues.

1. The repeated use of seclusion was a factor, but it seems likely that the circumstances of C’s life at the school would have been held to be a deprivation of liberty in any event. The key factor was “whether the person is, or is not, free to leave”, tested by “whether those treating him exercise complete and effective control” (paras 47-48, 103-104, 114).

2. There was no lawful authority for the deprivation of liberty, and therefore there was a breach of C’s Article 5 rights. The court was especially critical of the local authority’s failure to bring the case to the Court of Protection immediately C was 16 years old (and the issue is left open whether there may have been unlawful deprivation before that age as a result of the authority’s failure to apply for a secure accommodation order under s25, Children Act 1989 (paras 48, 113).

3. Although the Deprivation of Liberty Safeguards did not apply, as the school was neither a care home nor a hospital, the DOLS code of practice was relevant and should have been taken into account (paras 63, 64).

4. Though C was not detained under the Mental Health Act 1983 , the MHA code of practice, and associated guidance on seclusion in particular, showed best practice and should have been followed (paras 68-71). The judge held there was “no doubt has implications for other young people with serious learning disabilities who are in residential care”.

5. C was often secluded in the blue room as the way of dealing with his nakedness. The judge directed that staff should be trained and put in place arrangements to minimise restrictions on C’s choice to be naked (paras 116-117).

Also on the following matters

The judge could not understand why no consideration had previously been given to using the Mental Health Act 1983 to detain C, but suggests that the decision of whether to use Mental Health Act 1983 or Mental Capacity Act 2005 should rest with the clinical team at his next placement, which could be taken to contradict the judgment in GJ v the Foundation Trust that clinicians “cannot pick and choose” between the two, see (paras 67, 85-87)

With the range of issues involved, crossing the jurisdiction of the Administrative Court to judicially review the local authority’s decisions and the Court of Protection’s jurisdiction over issues of C’s best interests, the outcome is an extensive and prescriptive judicial intervention in detailed care planning. The judge sets out exactly what should and should not be done, rather than saying a local authority should reconsider any unlawful decision, or determining C’s best interests among competing options presented by the parties.

The issue of resources is implicit throughout the judgment, but never openly dealt with.

Finally, as in Neary, this litigation arose, at least partly, as a result of a breakdown in the relationship between the family and the local authority. The judge commented that “negative assumptions” about C’s mother were unjustified, and “more to the point she is and should be a partial defender of her son’s interests” (para 101).

For a transcript of the judgment click here.

Cheshire West and Chester Council v P (By his litigation friend the Official Solicitor; (2) M [2011] EWHC 1330 (Fam) (Baker J):The court held that the new care plan was in P's best interests and there was a deprivation of liberty for the reasons given in paras 58-60 of the judgement. The court made a costs order was made against the local authority as the serious misconduct of its employees (including misleading the court under oath, failure to disclose documents and falsifying records) which rendered the proceedings more costly. The court held that the public interest in holding public authorities accountable amounts to a 'good reason' for naming the local authority; the scale of the possible identification of P was minor enough not to prevent this. Click here for report.

R v Annette Hopkins: R v Margaret Priest [2011] EWCA Crim 1513 (Pitchford LJ, Treacy J, Judge William Davis QC): The Court of Appeal held that in order to prove an offence of the wilful neglect of a person lacking capacity contrary to section 44 of the Mental Capacity Act 2005 the Crown first had to prove, to the criminal standard, that the defendant had wilfully neglected a person in his care, and then had to prove, on the balance of probabilities, that that person lacked capacity. (No free transcript yet available).

W (By her litigation friend B) v (1) M (An adult patient, by her litigation friend the Official Solicitor) (2) S (3) A NHS PCT (2) Times Newspapers Ltd [2011] EWHC 1197 (Fam) (Baker J): In an application to discontinue and withhold life-sustaining treatment and medical support to a 43-year-old patient suffering from a profound brain-wasting condition, the court gave guidance about the reporting of cases heard in the Court of Protection, with particular emphasis on the factors to take into consideration when balancing freedom of expression with the right to privacy. The Court held the general rule, as evidenced by the Court of Protection Rules 2007 r.90(1) and by Independent News and Media Ltd v A [2010] EWCA Civ 343, [2010] 1 WLR 2262, was that hearings would usually take place in private. Exceptions to that rule were accommodated by r.92, but the court had to be satisfied that there was "good reason" to deviate. Although there was no express reference to the court's power to grant injunctions, it was clear from r.82(1) of the Rules and from the Mental Capacity Act 2005 s.47(1) and the Senior Courts Act 1981 s.37 that it could do so and the legal test for making reporting restriction orders was contained in COP PD 13A. (no free transcript yet available).

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