2013 09 Incapacity

Tuesday 1 October 2013

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In the matter of Ruth Minna Boff Court of Protection No 12338771 COP, Senior Judge Denzil Lush: Dr Boff wished to appoint a replacement attorney to succeed her initial replacement attorney. The Judge held that the meaning of s.10(8) MCA 2005 was clear and prevented the appointment of a further replacement attorney. A replacement attorney can only replace an original attorney. Click here for the judgment.

AM v (1) South London & Maudsley NHS Foundation Trust and (2) The Secretary of State for Health[2013] UKUT 0365 (AAC) (Charles J): concerns the approach that decision-makers under MHA 1983 should take when there is a possibility that a person could be lawfully assessed and treated under MCA 2005 instead of ss 2 or 3 MHA 1983.

AM, who lacked mental capacity in relation to her admissionto and treatment in hospital, appealed to the Upper Tribunal against a First-tier Tribunal decision to uphold her detention under s 2 MHA 1983. It was argued on her behalf that she would stay in hospital on a voluntary basis and therefore s 2 detention was not “necessary” and therefore not “warranted”; she could be assessed and treated in hospital under s 5 MCA 2005 and, if objectively her situation amounted to a deprivation of liberty, this could be authorized under the Deprivation of Liberty Safeguards (DOLS) under Schedule A1 MCA 2005.

It was held that the DOLS do provide an alternative basis to the MHA to authorise the deprivation of the liberty of an incapacitated person for assessment or treatment for mental or physical disorder in hospital. Therefore a decision-maker under the MHA has to consider whether that alternative is available and, if it is, whether it should be used when he/she applies the necessity test under the MHA 1983. This involves asking whether the person will comply with all the elements of assessment or treatment and assessing the risk of non-compliance; asking whether the person is “ineligible” to be deprived of their liberty under the DOLS and whether an authorization under the DOLS is required. If AM was compliant with her treatment she would not be ineligible for the DOLS. Generally, but not always, it would be more appropriate to rely on ss 5 and 6 MCA 2005 and the DOLS. Decision-makers under the MHA 1983 had to have regard to the practical availability of the MCA regime. When a discharge under the MHA of a compliant incapacitated person was warranted it should usually be deferred to enable a DOLS authorization to be obtained (paragraph 74).

The First-tier Tribunal had erred by not addressing the compliance issue. Whereas it was argued on behalf of AM that she was willing to stay in hospital, there was an arguable case that AM would either on her own or as a result of the influence of others not be compliant throughout the proposed assessment and any later treatment. The case was remitted to a differently constituted First-tier Tribunal. Click here for the judgment.

Note: The references in Charles J’s earlier decision of J v Foundation Trust [2010] Fam 70 to the MHA 1983 having primacy require qualification in the light of his judgment in AM (see paragraph 78 of AM).

R (Moosa) v Legal Aid Agency [2013] EWHC 2804 (Admin) (Holman J): this was an application for permission to apply for judicial review against a decision by the former Legal Services Commission (“LSC”), now Legal Aid Agency, not to grant public funding to the brother of a patient. The patient was a young man with considerable mental and physical disabilities, residing in a residential establishment. There were on-going proceedings in the Court of Protection concerning where the patient should live. The patient’s mother was not eligible for public funding on financial grounds. The brother had no capital and would be financially eligible. The Court of Protection had joined the mother and brother to the proceedings with a comment that the LSC must be told fairly and frankly that the brother was not wishing to put forward a separate voice from the family. The LSC had refused public funding as the brother had no separate interests from his parents, and that the mother had means to fund the case. The Judge found that the mother could reasonably be expected to fund the case although her means were modest. The brother’s involvement was a device to obtain funding. He could not surmount the hurdle that his mother could reasonably be expected to fund the case and therefore public funding should be refused, applying the Funding Code and Guidance. Permission to bring judicial review proceedings was refused. Click here for the judgment.

MK v JK & Others[2013] EWHC 4334 (COP) (Ralton DJ): states the circumstances in which a court may be minded to appoint a Personal Welfare Deputy. Referring to G and E v Manchester City Council and F[2010] EWHC 2512, in which Baker J held that it is “emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given a special legal status to make decisions about incapacitated persons”, the court stated that, whereas appointment of deputies for property and affairs was common, it would be rare for the court to consider it right to delegate its issue-resolving function to a deputy on any significant issue of principle such as residence, type of care, treatment and such like. Article 8 was also relevant because putting in place a state-appointed decision-maker was a considerable interference with family life and would therefore have to be justified by the requirements of legitimate aim and proportionality. Click here for the judgment.

Y County Council v ZZ[2012] EWHC B34 (COP) (Moor J): Declarations were granted that a man with a mild learning disability lacked capacity to decide on restrictions relevant to supporting his residence and care and that it was lawful and in his best interests to deprive him of his liberty by the restrictions imposed by the local authority’s care plan. He had a proclivity for deviant sexual activity towards children. He was subject to a guardianship order under s. 8 MHA 1983. However he could be subject to deprivation of his liberty under MCA 2005 Schedule A1 provided that it did not conflict with the requirements of the guardianship, but the court would not have jurisdiction to make decision with regard to his place of residence whilst the guardianship order specifying his place of residence was effective (C v Blackburn & Ors [2011] EWHC 3321). The restrictions that were imposed on him at his placement caused him to be deprived of his liberty: it was a locked environment, he was subject to regular checks, he was to be accompanied by an escort whenever he left the property, his access to the garden was supervised, his mobile phone use was restricted and he consistently objected to residing at the placement and to the restrictions placed on him. The purpose of the restrictions was to protect others in the community, in particular children, as well as to protect him. Click here for the judgment.

An NHS Foundation Trust v M & K [2013] EWHC 2402 (COP) (Mrs Justice Eleanor King DBE): M was a 22 year old man with a congenital abnormality of the brain: holopreosencephaly or “HPE”. He had been cared for since he was a very young child by his aunt, K. Since June 2010 his medical condition had been progressively deteriorating. The hospital sought an order that it was in his best interests not to be resuscitated in the event of a cardiac or respiratory arrest, that he should not be admitted to intensive care unless he was suffering from a condition that was reversible by intensive care treatment, and that should his condition further deteriorate, the treatment given would be palliative care. It was agreed that M lacked capacity and so the Court was to consider what were in his best interests. Medical evidence was given that the experience of receiving intensive care would be painful, distressing and futile. In deciding what were his best interests, the Judge reminded herself that there is a strong presumption in favour of the preservation of life. The futility and potential burdens of the treatment were central, but not the only questions, in the overall assessment: Aintree University Hospital NHS Foundation Trust v David James & others [2013] EWCA Civ 65 (see April 2013 update). The Court must also consider the patient’s past and present wishes and feelings, his beliefs and values and other factors that he would be likely to consider if able to do so, and also take into account the views of those caring for as to what would be in his best interests and what they consider to be his real wishes and feelings. The Judge concluded that treatment would be futile. It was likely that it would be painful for M, could lead to further loss of cognitive function and that successful treatment would result in mechanical ventilation. She concluded that it was not in his best interests to be resuscitated. She noted that it had not been possible to ascertain M’s views but took into account K’s belief that M would wish to be resuscitated. She also decided that there would be no therapeutic benefit to receiving intensive care, unless it were for a condition that was reversible, and that it would not be in his best interests to undertake intensive care. As a result of the orders she made, it was hoped that M would be able to return home and die at home peacefully. The judgment was delivered in May 2013 but has only just become available on bailii. Click here for the judgment.

A NHS Trust v Dr A[2013] EWHC 2442 (COP) (Baker J): held that the High Court’s inherent jurisdiction in respect of vulnerable adults can be invoked for the benefit of incapacitated as well as other vulnerable adults. The prohibition in s 16A MCA 2005 against including in a welfare order a provision which authorizes a person to be deprived of their liberty where the person is “ineligible” did not prevent the safety net of the inherent jurisdiction from being available for a person lacking capacity who required an order in their best interests and in order to uphold their rights under Article 2 ECHR. Dr A, an Iranian doctor, refused to eat in protest against the UKBA’s decision to refuse him asylum and confiscate his passport. He was suffering from a delusional disorder and lacked capacity to make decisions about nutrition and hydration. It was in his best interests to permit forcible feeding, the magnetic factor being the importance of the preservation of life. Forcible feeding would involve a deprivation of liberty. However, as Dr A was placed under s 3 MHA 1983, he was ineligible to be deprived of his liberty under MCA 2005. The court rejected the argument that the necessary feeding and associated measures could be taken under the MHA 1983, on the basis of being within the meaning of “medical treatment” under s 145 MHA and thus included in the range of treatment that could be administered under s 63 MHA without Dr A’s consent. Clinicians treating Dr A considered that artificial nutrition and hydration were, on the facts of the case, treatment for a physical disorder, starvation and dehydration and not for the underlying mental disorder. The court was under an operational duty under Article 2 ECHR to protect Dr A. It made declarations under the inherent jurisdiction that it was lawful to provide him with artificial nutrition and hydration and to use reasonable force and restraint for that purpose, and insofar as those measures amounted to a deprivation of liberty, they were lawful. Click here for the judgment.

Note: The case demonstrates the inherent jurisdiction providing a safety net where MCA 2005 and MHA 1983 leave a gap. It also contributes to the ongoing process of working out the relationship between MCA 2005 and MHA 1983. AM v South London & Maudsley NHS Foundation Trust (below) is a key decision on the interface between MCA 2005 and MHA 1983. There is further comment on the relationship between MCA 2005 and guardianship under MHA 1983 inY Council v ZZ.

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