2014 04 Incapacity

Thursday 1 May 2014

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Re MRJ (reconsideration of an order) Case No: 12256266 (Senior Judge Lush): MRJ was a 81 year old woman with moderately advanced dementia. She had appointed one of her two daughters, JT, and her grandson, KT, as her attorneys under LPAs for property and financial affairs and for health and welfare. The Office of the Public Guardian was concerned that the attorneys might be abusing their position and had applied for an order revoking the health and welfare LPA. Senior Judge Lush had made orders in September 2013 revoking the health and welfare LPA and suspending the attorneys from acting under the property and financial affairs. The attorneys applied to the Court for a reconsideration of the second order, which had been made on the papers. The Court noted that a reconsideration of an order made on the papers was not an appeal and should be approached as if the Court was making the decision afresh. It also directed itself that the revocation of a LPA, executed by a donor who at the time had capacity and who had chosen a family member as his or her attorney, would be a violation of the donor’s right to respect for private and family life, unless the interference was warranted by Article 8(2). Having heard evidence, the Court was satisfied that the attorneys had acted in a way that had contravened their authority and had not been in MRJ’s best interests. The revocation of the LPA was found to be in MRJ’s best interests, in accordance with the law and a necessary and proportionate response for the protection of crime and for the protection of MRJ’s right to have her financial affairs managed competently, honestly and for her benefit. Click here for the judgment.

Nottinghamshire Healthcare NHS Trust v J [2014] EWHC 1136 (COP) (Holman J): J was a 23 year old man, suffering from a severe personality disorder, with a history of self-harming by cutting himself. He had a history of compulsory detention under the MHA. He was also serving a sentence of imprisonment. His parents were practising Jehovah’s witnesses and he recently embraced that faith. His medication included Warfarin (an anti-coagulant) so that when he bled, he did so more profusely than otherwise. He had signed a document stating that it was an advance decision to refuse blood transfusions or other administrations of blood. The document appeared to be witnessed. Since signing the document, he was continuing to self-harm and the Trust applied to the Court of Protection, without notice. The Court found that although the document did not strictly comply with sections 25(5) and (6) of the MCA, which require advance decisions concerning life-sustaining treatment to state that they were signed by both the maker and a witness in each other’s presence, the document was clearly prepared in order to constitute an advance decision and a declaration was made to that effect. The Court was also asked to consider the relationship between the advance decision, and s.63 MHA which provides that consent of a patient is not required for any medical treatment given for the mental disorder provided that the treatment is given by or authorised by the approved clinician. The Court found that the resolution of the advance direction and s.63 MHA produced a terrible dilemma. J had apparently had capacity to make the advance direction and refuse treatment. Because he was compulsorily detained, the state had a duty to protect him. The Court refused to make an urgent interim declaration and adjourned the hearing to the following day, directing the Official Solicitor should attend, that the Trust should use its best endeavours to facilitate J to be represented and to ensure that J’s father was informed of the hearing and encouraged to attend. If there was a contrary argument that the power at s.63 should be positively exercised despite the terms of the advance decision, it would be very important for the Court to hear it. Click here for the judgment.

Wandsworth Clinical Commissioning Group v IA (by the Official Solicitor as his litigation friend) [2014] EWHC 990 (COP) (Cobb J): IA was a 59 year old man with type 2 diabetes, partial blindness, limited mobility, a serious kidney disease requiring regular dialysis, anaemia, chronic leg ulcers, cellulitis and neuropathy in his feet. He was constantly at risk of severe infection. He had also been the subject of a violent criminal assault in 2007 resulting in a serious head injury and cognitive impairment. He had been an in-patient in hospital and was ready to be discharged The issue was whether he had capacity to make decisions about his ongoing medical treatment, future residence and care and management of his property and affairs. The issue was finely balanced. After considering all the evidence, including IA’s letters written to the Court, the Court was satisfied that IA met the functionality test and was able to make decisions in key areas relevant to his imminent discharge. It was therefore not required to make a declaration as his best interests. The case is a useful analysis of the medical issues involved and the functionality test. Click here for the judgment.

A Local Authority v TZ (by his litigation friend, the Official Solicitor) (No 2) [2014] EWHC 973 (COP) (Baker J): TZ was a 24 year old man with mild learning disabilities, atypical autism and hyperactivity disorder. The Court had previously decided that he lacked the capacity to litigate and that he did have the capacity to consent to and engage in sexual relations. He had come out as gay and lived in a care home. The issue was whether he had capacity to make decisions as to his contact with other people and to make decision as to his care needs. He had come out as gay and lived in a care home. Specifically, whether he had the capacity to make a decision as to whether or not an individual with whom he might wish to have sexual relations was safe and whether he had the capacity to make a decision as to the support he required when having contact with an individual with whom he might wish to have sexual relations. The Court found that TZ did not have the capacity to decide whether a person was safe or what support he required. After consideration of his wishes and feelings, and of the principle that he should be kept from harm, and considering his right to respect for his private life, it found that TZ’s best interests were served in a care plan which was focussed on educating him and empowering him to make decisions as to whether someone with whom he wished to have sexual relations was safe. A named worker should be identified; advice and assistance sought from LBGT groups, and his support worker should devise a programme of social activities (visiting pubs, cafes, clubs and other venues) to which TZ could be introduced. The plan should specify in detailed terms the steps to be taken if TZ should meet a stranger and wish to have private time with that person. It should also set out the circumstances in which care workers might intervene to protect him. It found that the appointment of a welfare deputy was unnecessary. If there was immediate cause for concern, the care worker should take any decision to protect TZ, including if necessary applying for injunctive relief or calling the police. Long-term decisions, such as decisions around cohabitation, were matters to be decided by the Court. Click here for the judgment.

Redbridge LBC v G (by the Official Solicitor as her litigation friend), C, and P [2014] EWHC 959 (COP) (Cobb J): G was 94 years old; she was cared for by C and F. She suffered from dementia. The local authority had sought an injunction forbidding C from taking G or involving G in any public protests, demonstrations or meetings with the press relating to any aspects of the proceedings. The evidence was that G and C had taken part in a demonstration or protest outside Ilford Town Hall, the protest concerning the local authority’s involvement with G. G had also been taken to the Houses of Parliament and had signed a petition asking the government to intervene in her dispute with the local authority. She had also met with representatives of the press and discussed her situation. The Judge found that the question of G’s capacity to engage with members of view had to be assessed properly and expertly before the Court could reach an informed view as to her best interest. The hearing of the application was adjourned and directions were given. In the interim, there was reason to believe that G did lack the capacity in relation to decisions concerning communications with the press. The Court found that G had expressed ambivalent feelings about engaging with the media and that it was in her best interests to make an interim order that she should not communicate with the press. Click here for the judgment.

A County Council v MS, RS [2014] EWHC B14 (COP) (DJ Eldergill): MS was a 40 year old man who had bipolar affective disorder, schizophrenia and schizoaffective disorder. He was subject to a community treatment order under s.17A MHA. He had recently inherited money and wished to donate 10% of the inheritance, £6832, to the Church of Latter Day Saints as a tithe. His mother, RS, had expressed concern and the local authority had sought a direction from the Court as to whether the request should be authorised. MS had applied for a declaration that he had capacity to litigate, to manage his property and affairs and to make the tithe. The Court found that MS did have an impairment of or disturbance in the functioning of the mind or brain. However, it could not be demonstrated that his desire to give money to the church was part of any delusional belief system. The presumption of capacity had not been displaced. It followed that there was no jurisdiction to determine his best interests. The judgment contains useful analysis of the right to respect for liberty of conscience and religious belief, both conventional and unconventional religious beliefs. Click here for the judgment.

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