2012 01 Incapacity

Wednesday 1 February 2012

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Cheshire West and Chester Council v P (by his litigation friend the Official Solicitor) [2011] EWCA Civ 1257 (Pill LJ, Lloyd LJ, Munby LJ): the Respondent was a 39-year old man with cerebral palsy, Down’s syndrome and significant physical and learning disabilities. He was placed in a care home after his mother was no longer able to care for him. The issue for the Court was whether the circumstances of his placement amounted to a deprivation of liberty. Baker J at first-instance had held that there was a deprivation of liberty and that it was in P’s best interests to continue to reside at the care home. The local authority appealed. Munby LJ, giving the lead judgement with which the other two Lord Justices agreed, extensively reviewed authorities relating to Article 5 and deprivation of liberty. He held that the starting-point as to whether there was a deprivation was the concrete situation, taking into account the type, duration, effects and manner of implementation of any measure under scrutiny; restraint itself is not a deprivation of liberty; account must be taken of the individual’s whole situation; context is crucial; lack of capacity to consent to living arrangement cannot in itself create a deprivation of liberty; and it is legitimate to have regard both to the objective reason why someone is placed and treated as they are and to the objective purpose. Subjective motives have only limited relevance. An improper motive may have the effect that what would otherwise not be a deprivation of liberty is in fact a deprivation. A good motive cannot render a deprivation of liberty innocuous. Good intensions are essentially neutral. It is always relevant to asses the “relative normality” of the concrete situation. In cases that come before the Court of Protection, the comparator when assessing “relative normality” is an adult of similar age and same capabilities, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as the adult concerned in proceedings. A domestic setting can involve a deprivation of liberty, depending on the context, but not typically. On the facts, despite the fact that P could be subject to physical restraint in order to deal with his challenging behaviour, there was not a deprivation of liberty. The care home was providing “a strong degree of normality” for P. The appeal was upheld. Click here for the transcript.

A Local Authority v PB and P (by his litigation friend the Official Solicitor) [2011] EWHC 2675 (COP) (Charles J): P (referred to as “D” in the judgement) was a 49-year old man with significant learning difficulties and behavioural problems, agoraphobia and glaucoma, leading him to be effectively blind. Until 2008 he had lived with his mother (PB). After his mother had been arrested and detained in custody, police and social workers had visited the home and removed P to a care home. By the time of the hearing, PB had accepted that it was not in P’s best interests to live with her. She sought an order that P have overnight contact at her home, which would not be supported or supervised. Charles J held that the benefits of introducing and promoting unsupported contact both during the day and overnight generally were that it can increase and promote the normality of family and other relationships for P. It was in P’s best interests for there to be a trial of unsupported contact in the daytime. He considered whether PB’s attitude (which was not to acknowledge the benefits of the care provided in the care home or that she might need help in caring for P) meant that contact should nevertheless be ruled out and decided that she should be given an opportunity. The reasons for that were her co-operation with supported contact visits at her home and because contact generally can create a dynamic situation. She would need to demonstrate significant contact if there were to be a trial of unsupported overnight contact. The issue would be reviewed in summer 2012. Click here for the transcript.

De Louville De Toucy v Bonhams 1793 Ltd 2 November 2011 Chancery Division: The Claimant had mental health problems which meant that he was incapable of running his own finances. He was made bankrupt by order of the register in October 2010. He had not been present. At the hearing there had been a medical report on his mental state which set out that the claimant was unable to manage his financial affairs in general and in particular incapable of managing the litigation regarding money he owed the Defendant. The Claimant appealed against the bankruptcy order contending that the court had acted improperly by failing to provide him with the opportunity to make representations. He submitted that the evidence showed that he was an incapacitated person (Insolvency Rules SI 1986/1925 rule 7.43(1)(a)) and a protected party (CPR 21.1) and that the register should have adjourned the hearing of the petition to enable the Claimant to be represented by the Official Solicitor. The appeal was allowed. It was clear that a court faced with a capacity issue would need to consider representation for an incapable person. The Insolvency Rules and CPR would sit alongside each other on that issue. The register should have adjourned the case for a representative or litigation friend to be appointed and to have the opportunity to make representations. On the evidence as to the Claimant’s financial affairs, it was impossible to be sure that it was appropriate to make a bankruptcy order. The order was set aside and the matter referred to the register to be heard again. Transcript not yet available.

DN v Northumberland Tyne & Wear NHS Foundation Trust [2011] UKUT 327 (AAC) (Jacobs J): Mr N was a patient detained under s.3 Mental Health Act 1983. he lacked capacity to make decisions in respect of his residence and his consumption of alcohol. He had alcohol dependency syndrome, impairing his memory and executive functions. When not detained, he would relapse into heavy alcohol consumption which exacerbated his cognitive deficits. He had applied to the first-tier tribunal for discharge of his s.3 detention and had submitted that he could be conditionally discharged, if the discharge was deferred for arrangements to be put in place for a deprivation of liberty procedure that would provide for him to be accompanied at all times in order to prevent him buying or acquiring alcohol. This would have the effect that detention under the MHA was no longer appropriate or necessary. The question that the first-tier tribunal had to ask was whether Mr N would be within the scope of the MCA if he were discharged. The answer to that depended on whether he could be detained under sections 2 or 3 MHA. He had previously been assessed so did not fall under s.2 MHA. As for s.3, Mr N was suffering from a mental disorder. However it was not necessary to detain him for the treatment envisaged under the MCA and detention was not necessary for health, safety or protection. As a result, he was not within the scope of the MHA and so was not excluded from the MCA. The first-tier tribunal did not give reasons why it had rejected the submission that Mr N could be subject to supervision rather than treatment. The appeal was allowed and the matter remitted for re-hearing. Click here for the transcript.

A London Local Authority v JH (by her litigation friend the Official Solicitor) and MH [2011] EWHC 2420 (COP) (DJ Eldergill): the local authority had applied for declarations that JH lacked the capacity to decide where to live on discharge from hospital and that it was in her best interests to be discharged to, and live in, a nursing home. JH was a woman aged 75 years old who had significant physical health problems and had suffered two strokes. The second strike had left her bed-bound and fully dependent on carers. MH was her 60 year old husband who had cared for her until her second stroke. DJ Eldergill made an interim declaration that JH did not have capacity. He considered whether it was in JH’s best interests to be discharged to a nursing home rather than to her home, to be cared for by her husband with a care package from the local authority. There had been a dispute between MH and the local authority as to the amount of care provided under the package. The local authority’s position was that an interim move to a nursing home would be in JH’s best interests and that if she returned home there was a likelihood that her husband would not co-operate, putting JH’s health and welfare at risk. The Judge found that JH’s views were that she wished to return home to live with her husband, that she was committed to her marriage and that discharge to a care home would be a deprivation of her liberty. He decided that residing in a nursing home was not in her best interests at this stage and that it would not be in her best interests to deprive her of her liberty to effect that end. He noted that residence in a nursing home on an interim basis contains a risk of institutionalisation and that relatively few people return home after being placed in a nursing home. Pending the final hearing, it was in JH’s best interests that she should be returned home and receive the care package provided by the local authority. Click here for the transcript.

LG v DK [2011] EWHC 2453 (COP) (Sir Nicholas Wall, P): DK was 84, suffered from dementia and lived in a nursing home. LG was his deputy. She applied to the Court to decide whether it would be in DK’s best interests to provide a bodily sample for DNA purpose in order to decide whether or not a woman in her 50s was DK’s daughter. Before LG had lost capacity, he appeared not to be willing to give a sample. Section 20 Family Law Reform Act 1969 permits a court to require use of scientific tests “in any civil proceedings in which the parentage of any person falls to be determined”. Section 21 requires that a bodily sample should not be taken from an adult except with his consent. Section 21(4) permits a court or deputy to give consent where the adult lacks capacity. Sir Nicholas Wall P held that s.21(4) gave the Court of Protection jurisdiction to give consent. Directions were given for the final hearing when the Court would decide whether or not it was in DK’s best interests to give a sample. Transcript not yet on bailii.

Quigley v Masterson [2011] EWHC 2529 (Ch) (Henderson J): the Claimant was the daughter and deputy of a patient of the Court of Protection, a Mr Pilkington. The Defendant was Mr Pilkington’s former cohabitant and a joint owner, with him, of a property which they held as joint tenants. Their relationship had ended in 2001. Mr Pilkington’s solicitors had attempted, but failed, to serve notice of severance of the joint tenancy on the Defendant in 2002. Mr Pilkington was found to lack capacity from 2004. His daughter was appointed deputy in 2009. Before she had taken any steps to serve a new notice of severance, Mr Pilkington had died. The issue was whether the Defendant was entitled to be registered as the sole legal proprietor of the property, the legal estate having passed to her by survivorship, or whether the joint tenancy had been severed before Mr Pilkington’s death. The Claimant initially submitted that she did not need to serve a notice of severance, because she had always accepted that the tenancy was severed. This was rejected. Prior to the Claimant’s appointment as deputy, she had no authority to act for or speak on behalf of her father. After her appointment she had sufficient authority both to serve and to receive a notice of severance. Severance could be achieved by mutual conduct which indicates an unambiguous common intention that the joint tenancy should be severed. At the time of the Claimant’s appointment as deputy, she knew that the Defendant had applied to the Court for a declaration that she was entitled to a 50% share in the property, and that application had not been withdrawn. This was sufficient for there to be mutual conduct indicating that the joint tenancy had been severed. Click here for the transcript.

Sharma and Judkins v Hunters [2011] EWHC 2546 (COP) (Henderson J): the First Applicant was the deputy of a now-deceased patien and the Second Applicants were her solicitors. The Respondents were a firm of solicitors who had acted for a Mrs Duke. Mrs Duke had made applications in the Court of Protection which had been dismissed. There had also been Chancery proceedings between the parties, which she had lost. The general rule in the Court of Protection is that costs of proceedings concerning the property and affairs of a patient should be paid by the patient or charged to his estate. The Judge departed from that rule and ordered that Mrs Duke should bear all of her own costs from a particular hearing date and pay 75% of the deputy’s costs from that date. The deputy and her solicitors subsequently made an application for wasted costs against Mrs Duke’s solicitors. Mrs Duke did not waive privilege. The basis of the application was that the expert instructed by Mrs Duke had not been adequately instructed, not provided with all the relevant documentation and information and that the solicitors had sought to circumvent directions relating to expert evidence. It was said that the deputy had therefore been put to substantial expense which was avoidable and a direct consequence of the negligent or unreasonable conduct of the solicitors. The Judge rejected the application. It is only in extremely rare cases that a wasted costs order should be made against a legal representative who is prevented by legal professional privilege from giving his full answer to the application. He was unable to conclude that there was nothing the solicitors could say, if unconstrained by privilege, to resist the making of a wasted costs order or that it would be fair to make one. Click here for the transcript.

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