2011 08 Incapacity

Thursday 1 September 2011

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Manchester City Council v G, E (by his litigation friend the Official Solicitor) and F [2011] EWCA Civ 930 (Mummery LJ, Hooper LJ, McFarlane J): E was a 20-year old man who had tuberous sclerosis and serious learning difficulties. He lacked capacity. He had been in the care of F between 1995 and 2009. G was E’s older sister. In April 2009 the local authority had removed E from F’s care and placed him at a residential establishment. It subsequently informed F that E would not be returning to her care. G filed an application in the Court of Protection. Baker J held that the local authority’s conduct had wrongfully deprived E of his liberty, had infringed his rights under Article 5 by placing him at the residential establishment without seeking authorisation, and had infringed his rights under Article 8 by removing him from F’s care without proper authorisation and by failing to consider the effect on E’s family life or to involve F in decision-making. Baker J described the council’s failings as “blatant errors, lamentable, deplorable, grave and serious”. He departed from the general rule that there should be no order as to costs in the Court of Protection and ordered that the local authority should pay the costs of G, F and E up to and including the first day of the hearing on an indemnity basis and pay one-third of their costs thereafter on a standard basis. The Court of Appeal dismissed the local authority’s appeal. The Judge had been right not to treat this as a typical case and he was entitled to come to his conclusions, including the order that costs should be paid on an indemnity basis. Transcript not yet available.

Court of Protection Annual Report 2010: the Report notes the appointment of Sir Nicholas Wall as President of the Court of Protection and that there are over 100 judges authorised to exercise the court’s jurisdiction under the Mental Capacity Act 2005. There is a useful section on reporting of Court of Protection cases. 28 decisions made during 2010 are summarised. 19,528 applications were received in the year 2009 – 2010, 1,408 fewer than the preceding year. Tables provide a breakdown of the most common types of applications received and orders made in 2010. Click here to read the report.

WCC v GS (by the Official Solicitor), RS and JS 2011 EWHC 2244 (COP) (DJ Marin): GS was an elderly lady who had physical disabilities and dementia. RS and JS were her adult sons. The local authority, WCC, commenced proceedings for a declaration that GS lacked capacity, a declaration as to where she should live and a declaration as to how contact between GS and RS should be managed. The Court declared that she did lack capacity and that it was overwhelmingly in GS’s best interests to remain in her current care home. When considering contact between a parent and a child, the starting point should be that there should be full and unrestricted contact and conditions should only be imposed if the patient’s best interests demanded it. Having considered RS’s admitted behaviour on contact visits, the Court decided that conditions should be imposed. When considering types of conditions to impose, the Court needs to have the following considerations in mind: that there be appropriate reviews of the conditions, that an end of life plan should be put in place, that conditions might range from addressing each step of a contact session to a more general approach, that dates and times of visits should be set out clearly in a contact schedule, that there should be consideration of whether a plan is needed to address problems, whether it is appropriate for financial assistance to be made available to the relative, if the visit is to be supervised by whom and to what level, there should be a right for the home or contact supervisor to cancel the visit, the ability to shorten or lengthen a visit, conditions may regulate behaviour of the family member and there should be a record of the visit. A contact schedule and conditions were approved. Click here for the transcript.

KY v DD [2011] EWHC 1277 (Fam) (Theis J): The Court gave guidance on urgent without notice applications which would also apply to the Court of Protection. The guidance given was endorsed by the president of the family division. The Court gave the following guidance as to the principles that apply when orders are sought without notice, and in particular of the need for written evidence justifying the application to be placed before the court at the time of the hearing or, exceptionally, immediately after the hearing. It is also a reminder that without notice applications should only be made in cases of genuine urgency. Click here for transcript.

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