2013 12 Incapacity

Wednesday 1 January 2014

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TA and AA (by his litigation friend The Official Solicitor) v Knowsley MBC [2013] EWCA Civ 1661, Moses, Black and Gloster LJJ: TA applied for permission to appeal against a decision of Peter Jackson J, who had dismissed TA's application for permission to appeal against a decision of HHJ Gore QC. The Court considered the routes of appeal in the Access to Justice Act 1999 and in the MCA. It held that there was no jurisdiction for the Court of Appeal to hear an appeal against a refusal of permission to appeal. Click here for the judgment.

In the matter of PO [2013] EWHC 3932 (COP) Sir James Munby President: the issue was whether a woman aged 88, who lacked capacity to decide where to live, was habitually resident in England or in Scotland. She had lived in England until 2012, when her son moved her to Scotland, first to his own house and then to a care home. Her other three children lived in England. Sir James Munby found that she was not habitually resident in England and Wales. The issue had to be decided by reference to all the circumstances as at the time of the assessment. She had been in Scotland for some time and was settled in her care. The fact that her son and two of the other three children had moved her to Scotland did not amount a kidnapping. Although she could not decide where she should live, habitual residence could still be acquired where a relative or carer makes a decision, in good faith and taken in her best interests, to move her: the doctrine of necessity. He then considered whether the appropriate forum was the Court of Protection or an application to the Sheriff Court in Scotland and held that Scotland was the forum conveniens. Click here for the judgment.

RGB v Cwm Taf Health Board, Rhondda Cynon Taff CBC and CAB (by her litigation friend Peter Wakeford) [2013] EWHC B23 (COP) Moor J: CAB was a 70 year old woman who had Alzheimer's and lacked capacity. She was a patient in hospital. Her husband, RGB, wished to see her. The Court heard evidence from family members and professions that she did not wish to see him, and had made that clear when she had capacity. She also signed an advance statement to that effect. Moor J found that her wishes and feelings as clearly articulated in her advance statement were absolutely central to the matter and there would have to be some extremely compelling reason to go against such clearly expressed wishes. There was no reason at all and RGB's application for a declaration was refused. Click here for the judgment.

UF v A Local Authority (1) AS (2) Director of Legal Aid Casework (3) and Ministry of Justice (4)Case No. 12371457, 9 December 2013 (Charles J): concerned the availability of non-means tested public funding for a person subject to a deprivation of their liberty or their appointed representative in proceedings under s 21A MCA 2005, under the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, reg 5. The Director of Legal Aid Casework and Ministry of Justice stated that if the court authorised a deprivation of liberty because a standard authorisation would expire before the next hearing, varied a standard authorisation (s 21A (3)(a)), or extended an extant authorisation (s 21A(2)(b)), they would not treat the orders as contrivances and refuse public funding for that reason. An agreed note of the judgment, pending the transcript, is available from Coram Chambers - click here

A NHS Trust v P and Another[ [2013] EWHC 50 (COP) (Hedley J): P, who had learning difficulties due to a stroke resulting from sickle cell disease, had capacity to decide whether or not to have a termination of her pregnancy; guidance in NHS Trust v D [2004] 1 FLR 1110 paras 29 - 38 as to when a decision whether to have a termination should be referred to the court remained authoritative; those who were unable to function independently in the community in every aspect of life may well retain capacity to make deeply personal decisions; the intention of the MCA 2005 was “not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do”. The judgment is available on Mental Health Law Online - click here

Bethan Harris represented the First Respondent.

YLA v PM and MZ [2013] EWHC 3622 (Fam)(Parker J): The court considered the extent to which it had a discretion when deciding whether to exercise its power under s 15 MCA 2005 to make a declaration on capacity. MZ had come to the UK on a student visa and his application to remain in the UK was outstanding. A registry office marriage ceremony was conducted in respect of MZ and PM, a British citizen, who had a significant learning disability. The local authority (YLA) had provided a psychiatric report to the registrar stating that PM lacked capacity to marry; PM’s mother had provided a paediatrician’s report stating that PM did understand what marriage was. YLA sought declarations as to PM’s capacity. The court held that it did not have any true “discretion” or choice as to whether to make a declaration as to capacity, and the person’s best interests were not a relevant consideration in deciding whether to make a declaration on capacity. If it did have a discretion, it would decline not to make a declaration on grounds of wishes and feelings/welfare. PM lacked capacity to consent to sexual relations, or marriage or to decide where to live. In view of possible future education for PM, only interim declarations would be made.

It was questioned why the registrar had concluded there was no lawful impediment to marriage. The Guidance to Registrars contained an important omission in failing to mention incapacity. Protection might have been effected by a Forced Marriage Protection Order under s 63A Family Law Act 1996. Click here for the judgment.

Re Leslie Whiting [2013] EWHC B27 (Fam)(Hayden J): On the local authority’s application for a committal to prison for breach of an injunction issued for the protection of an adult lacking mental capacity, the court set out a list of crucial features of the committal process. Lawyers and social workers should work closely together to marshal the material as if proving the constituent parts of a count on an indictment; nothing less would do where the liberty of the individual was at stake. Click here for the judgment.

NHS v VT and A [2013] EWHC B26 (Fam)(Hayden J): Granting declarations that the provision of intensive care or resuscitation following cardiac or respiratory arrest (but not to exclude bag and mask resuscitation) were not in VT’s best interests , the court held that the family had accurately represented VT’s religious beliefs when asserting that VT would have wanted to avail himself of every possible opportunity of survival no matter what the pain involved or the quality of life and that those ultimate decisions were for Allah alone. However, although VT’s wishes and feelings were one of the most important of the factors, they were not determinative. Lady Hale’s analysis in Aintree [2013] UKSC 67 was adopted. Click here for the judgment.

Re AA, 23 August 2012 (COP)(Mostyn J): On 4th December 2013 the judge authorised the release of his judgment together with the verbatim transcript of the proceedings so as to inform public comment about the case. An NHS Trust was granted a declaration that it was in the best interests of AA to give birth to her baby by caesarean section, under sedation by general anaesthetic if deemed appropriate by the relevant clinicians and for reasonable restraint to be used if necessary and appropriate. AA was a patient detained under s 3 Mental Health Act 1983 and suffered a significant mental disorder. She had previously had 2 children by caesarean section. The clear obstetric advice was that she should have an elective planned caesarean, which was planned for the next day, in order to avoid risks for the child and to herself of a ruptured womb. The psychiatric evidence was also that this was in her best interests. It was held that the case fell squarely within the guidelines given in Re MB (Medical Treatment) [1997] 2 FLR 426, CA. Click here for the judgment.

In the matter of P (A Child) [2013] EWHC 4048 (Fam) (Munby J): Essex County Council applied for a reporting restriction in respect of proceedings concerning P, born on 24 August 2012, by Caesarean section authorised in Re AA(above). The child was placed in foster care and by decision of Judge Newton in February 2013 was made subject to a care order and a placement order for adoption. The mother did not appeal these decisions but took various proceedings in the Italian Courts. In October 2013 P was placed with prospective adopters. In December 2013 Judge Newton and Mostyn J had authorised the publication of their judgments. Munby J made an order preventing the child or its carers being identified but allowing the mother, who wished to complain publicly about the way the English courts had treated her, to be identified by her first and maiden names. There had been inaccuracy in the media reporting and the case was “a final, stark and irrefutable demonstration of the pressing need for radical changes” in the way in which the family courts and Court of Protection approached transparency. Click here for the judgment.

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