2014 01 Incapacity

Saturday 1 February 2014

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R (RC) v CC (by her litigation friend the Official Solicitor) and X Local Authority [2014] EWHC 131 (COP) Sir James Munby President: CC was a young woman, who lacked capacity. She had been adopted as a very young child and lived in the district of X. RC was her birth mother, who had had indirect contact with her but did not know where she lived, or even in which local authority's district. RC applied in the Court of Protection for an order that she have contact with CC. X filed a report by a clinical psychologist and three social worker statements. The first-instance Judge had decided that RC should only be permitted to see a redacted version of the psychologist's report and should not be permitted to see the social worker statements. RC's lawyers were permitted to see the statements on the basis that they did not divulge the material to RC without leave of the Court. RC sought permission to appeal. The President gave permission to appeal as there was a need for an authoritative ruling on the very important point of principle. He reviewed the authorities which stressed the fundamental common law principle of open justice and natural justice (a party's right to know the case against him). He noted that there had always been exceptions for cases concerning children and those who lacked capacity. Reviewing the authorities in children cases, he held that it was clearly established that there was jurisdiction to refuse disclosure of materials. The test to be applied was one of strict necessity: no order should be made unless the situation imperatively demands it and no order should extend any further than was necessary. When considering what was “strictly necessary” the first issue was whether disclosure would involve a real possibility of significant harm to the child. If it would, the court should balance the interests of the child in having the material properly tested and the magnitude of the risk of harm, and gravity of the harm. Courses such as redaction, anonymity orders or confidentiality rings should be considered. Documents can only be disclosed to lawyers, and not to their clients, if the lawyers consent and lawyers can only consent if satisfied that they can do so without damage to their client's interests. He upheld the decision of the first-instance Judge that the psychological report should only be disclosed in redacted form. The decision to withhold disclosure of the social workers' statements was wrong in law. The Judge had mis-applied the test of necessity, his reasoning as to why the statements should be withheld provided inadequate justification for such a restriction, and he had not considered alternatives, such as RC being permitted to read redacted copies, but not to retain them, or for there to be gisted documents. He remitted the issue of disclosure of the statements back to the first-instance Judge. Click here for the judgment.

R (David Tracey, personally and on behalf of the Estate of Janet Tracey (Deceased)) v Cambridge University Hospitals NHS Foundation Trust (1) Secretary of State for Health (2) and Equality and Human Rights Commission (Intervener) [2014] EWCA Civ 33(The Master of the Rolls, Longmore, Ryder LJJ): The court allowed the appeal against the order that there be no further hearing of the application for judicial review, made after a fact finding hearing. The application for judicial review was brought against the NHS Trust responsible for Addenbrooke’s Hospital in relation to its placing of Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) Notices on the notes of Mr Tracey’s wife, who was admitted to the hospital in 2011 where she died soon afterwards, aged 63. The claimant submitted that every decision to place a DNACPR notice on a patient’s notes engaged Article 8 and that the Secretary of State for Health should promulgate a national policy in relation to DNACPR notices rather than leave it to the BMA to make recommendations. The judicial review would be retained in the Court of Appeal. Click here for the judgment.

IM v LM (by her litigation friend, the Official Solicitor) (1) AB (2) and Liverpool City Council (3) [2014] EWCA Civ 37 (Sir Brian Leveson, Tomlinson and McFarlane LJJ):
The Court of Appeal ruled on the correct approach to determining capacity to consent to sexual relations. LM had suffered a brain injury and lacked capacity to make decisions concerning residence, care and contact with others. Jackson J found that she had capacity to make decision about whether or not to have sexual relations despite her weakness in understanding the implications should she become pregnant. LM’s mother challenged that finding. Dismissing the appeal, the Court of Appeal held that the test for capacity to consent to sexual relationships is general and issue specific, rather than person or event specific. The requirement for a practical limit on what needs to be envisaged as “reasonably foreseeable consequences” is derived from pragmatism and also from the imperative that the notional decision-making process attributed to the protected person should not become divorced from the actual decision-making process carried out by persons of full capacity, which is largely visceral rather than cerebral. The ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations, although it is not an irrelevant consideration and the statute mandates that it must be taken into account. The information typically regarded by person of full capacity as relevant to the decision whether to consent to sexual relations is relatively limited. The temptation to expand that field of information in an attempt to simulate more widely informed decision-making is likely to lead to paternalism and derogation from personal autonomy. The court also held that where a decision is of a kind which falls to be made on a repeated basis it is inevitable that the enquiry required by MCA 2005 is as to the capacity to make a decision of that kind, not as to the capacity to make any particular decision. Click here for the judgment.

Practice Guidance: Transparency in the Court of Protection, Publication of Judgments Sir James Munby President, 16 January 2014: the President issued this Practice Guidance which is to be followed by further Guidance, and then by Practice Directions and changes to the Court of Protection Rules 20007 and the Family Procedure Rules 2010. Section 12 Administration of Justice Act 1960 provides that it is a contempt of court to publish a judgment in a Court of Protection case unless either it has been given in public or, if delivered in private, the Judge has authorised publication (in which case the individual and his or her family concerned will usually be anonymised). From Monday 3 February 2014, there will be a distinction between judgments that a Judge must ordinarily allow to be published and judgments that the Judge may permit to be published. Permission to publish a judgment should always be given if the Judge concludes that publication would be in the public interest, regardless of any request for publication being made. There is also a list of nine issues where the presumption is that the judgment will be published unless there are compelling reasons not to do so. In other cases, the Judge may give permission to publish a judgment on an application by a party or accredited member or the media. In deciding whether to give permission, the Judge must take into account Articles 6, 8 and 10 of the ECHR and the effect of publication upon any current or potential criminal proceedings. Published judgments will contain the names of pubic authorities and expert witnesses unless there are compelling reasons not to name them. They will not normally name the person who is the subject of proceedings and other members of their family. Anonymity will not normally extend beyond the person and his or her family members unless there are compelling reasons to do so. Judgments will contain a rubric warning against identifying anonymised persons. Transcripts will be paid for either at public expense or by the party making the application and the judgments will appear on the BAILII website. Click here for the Guidance.

R (AB) v Human Fertilisation and Embryology Authority unreported, 14 January 2014, Carr J: AB was the common law wife of P, who had had a cardiac arrest and was in a permanent vegetative state. She had applied to the Authority for permission that P's gametes could be harvested. The Authority had refused. AB made an urgent application to the Court at a time when P had had further cardiac arrests and had a “do not resuscitate” direction. The Court ordered the hospital trust to retrieve gametes from P and authorised the Authority to give the hospital a special direction to store them. No gametes were retrieved. P's condition stablised and the “do not resuscitate” direction was lifted. The Authority successfully applied to discharge the order. The Judge held that the order should not have been sought, urgently or otherwise. The first step should have been an application to the Court of Protection to establish what was in P's best interests, and this had not been done. The hospital was not licensed to store gametes. The lifting of the “do not resuscitate” direction showed that the matter was not so urgent. It was agreed that nothing should happen until the outcome of the substantive hearing was known. Judgment not yet available.

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