2014 05 Incapacity

Sunday 1 June 2014

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Forthcoming hearing on applications relating to authorisations of deprivation of liberty following the decision of the Supreme Court in P&Q and Cheshire West: In response to the huge increase in such applications following the Supreme Court’s decision, Sir James Munby, President of the Court of Protection, has listed a number of cases together for a hearing on 5 – 6 June 2014 to address the principles governing court procedures when dealing with such applications.

Sheffield Teaching Hospitals NHS Foundation Trust v TH (by his litigation friend the Official Solicitor) and TR [2014] EWCOP 4 (Hayden J): TH was a 52-year old man in hospital, in a minimally conscious state. He lacked capacity to litigate. TR was his ex-wife and long-term partner. The hospital sought authority to transfer his care, in the medium term, to a specialist nursing home and to continue to provide nutrition, hydration and medication. TH had not made any advance decision as to medical treatment, either formally or informally. The Judge adjourned the issue of nutrition and hydration for a structured clinical assessment to evaluate whether there was evidence that his primary neurological pathways were sufficiently intact to permit any evidence of awareness to be detected and to assess whether he was generally aware, responsive and whether he could experience pain. The Judge found, having considered the evidence of TR and a number of friends, that TH would wish to determine what remains of his life in his own way, would wish to leave the hospital and end his days quietly and with dignity, being cared for by his ex-wife and a friend. He adjourned the issue of what weight to give TH’s views until the assessment had been concluded. Click here for the judgment.

RB (by his litigation friend the Official Solicitor) v Brighton & Hove City Council [2014] EWCA Civ 561 (Arden, Jackson and Fulford LJJ): RB was a 37 year old men with mental and physical disabilities. He had been dependent on alcohol since he was 15. In 2007 he had been found collapsed in the street, having sustained a severe head injury. After medical treatment, the long term effects were that he had suffered damage to his frontal lobe, impairing his mental processes, and was confined to a wheelchair most of the time. He was transferred to a care home for rehabilitation. From 2011 his relationship with the staff at the home broke down, he ceased co-operating and would leave and returned intoxicated. The care home applied for an authorisation for deprivation of his liberty, saying that he needed 24/7 care in order to ensure his safety. When he left the care home, he put himself at risk by drinking heavily. The Court of Protection had authorised his detention, having found that he lacked capacity to decide whether he should be accommodated there for the purpose of receiving care or treatment. RB appealed, contending that his inability to control his drinking was the same as it had been before the accident and so the brain injury was not the cause of his propensity to injure himself through excessive drinking. The Court found that clearly RB wishes to make unwise decisions and that in itself was not relevant to mental capacity. The issue was whether he had the ability to make those decisions and the burden rested on the Council to prove that he did not. The expert evidence showed that the brain injury had substantially impaired his ability to weight up and use relevant information. The Court dismissed the appeal against the finding that RB did not have capacity. It noted that RB’s wishes were that he should live independently in the community but that deprivation of liberty was necessary in order to protect him from seriously injuring himself and that must be in his best interests. The appeal was dismissed. Click here for the judgment.

Northamptonshire Healthcare NHS Foundation Trust and Northampton and Nene CCG v ML (by his litigation friend, the Official Solicitor), EL and BL [2014] EWCOP 2 (Hayden J): In this important judgement on the interplay between MCA 2005 and MHA 1983, having determined that it was in the best interests of ML to move from the family home to Bestwood Hospital and reside and receive treatment there, the judge determined that ML was ineligible for a deprivation of his liberty under MCA 2005 applying Schedule 1A, Case E and therefore the deprivation of ML’s liberty at the hospital could only be authorised under the MHA regime. He held that it would be “catastrophic to ML and extremely detrimental to his welfare interests” if he did not undergo or complete the treatment because his nearest relative objected to a Section 3 application and/or she or the FTT discharged him. For that reason, he took the “unusual course” of reserving to himself any application to discharge the nearest relative and of releasing his judgment to the President of the First Tier Tribunal, inviting him to allocate a judge to hear applications in this case, to ensure judicial continuity. Click here for the judgment.

Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317 (Mostyn J): RC was a 23-year old man who was serving a sentence of imprisonment. He had recently been admitted to a secure psychiatric hospital. Previously he had badly slashed an artery and refused a blood transfusion. He continued to try and reopen the wound. His parents were Jehovah’s Witnesses. He had not been brought up as a Jehovah Witness but had decided to convert to it. He signed an advance decision providing that no transfusions of blood or primary blood components should be administered to him. The NHS trust sought declarations as to his capacity to refuse blood products and to self-lacerate and a declaration as to whether the advance decision was operative. There was a dispute as to whether the administration of a blood transfusion following an episode of self-laceration would be treatment of a symptom or manifestation of his mental disorder, or treatment as a consequence of it. Section 63 Mental Health Act 1983 provides for treatment to be imposed on a patient, against his or her will, “for the mental disorder from which he is suffering”. The Judge was satisfied that RC had the capacity to refuse the administration of blood products. The advance decision was valid and RC had had full capacity when he executed it. It followed that, if RC is ever in a position where he lacks capacity, but there is a medical need for transfusion, then the advance decision would be operative. He also held that the doctor, who had acknowledged concern about using s.63 MHA to override a capacitious patient’s wishes, had been correct and it would be an abuse of power even to think about imposing a blood transfusion on RC given the Judge’s findings on capacity and the advance decision. Click here for the judgment.

London Borough of Redbridge v (1) G (by the Official Solicitor as her litigation friend) (2) C and (3) F and Associated Newspapers Limited (Interested Party) [2014] EWCOP 1361 (Sir James Munby, President of the Court of Protection): Associated Newspapers Limited applied to be joined as an interested party to the proceedings on the issues of G’s capacity to communicate with third parties including the media and, in the event that she lacked capacity, as to whether it would be in her best interests to communicate with the media. The judgement contains an analysis of the role of Articles 8 and 10 ECHR in this area. It also endorses the principle that the processes of the Court of Protection are essentially inquisitorial rather than adversarial. The application to be joined as a party was held to be misconceived. Click here for the judgment.

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