2014 06 Incapacity

Tuesday 1 July 2014

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Valuing every voice, respecting every right: Making the case for the Mental Capacity Act: the Government responded, in June 2014, to the House of Lords’ Select Committee Report on the Mental Capacity Act 2005 published on 13 March 2014. The Select Committee had concluded that the MCA is failing vulnerable adults, that not enough professionals were aware of the MCA, nor were they implementing it. It recommended that an independent body should be set up, with responsibility for overseeing the Act. It had also found that the Deprivation of Liberty Safeguards (DOLS) are not fit for purpose, and that those parts of the MCA should be replaced with legislation in keeping with the language and ethos of the MCA as a whole. Amongst other recommendations, it asked that the Government reconsider when non-means tested legal aid should be available to those who lack capacity, especially in cases of deprivation of liberty. In its response, the Government does not agree to the setting up of a single independent body to oversee the MCA. It argues that it would be difficult to design a single body that can have oversight across the very broad range of organisations who implement the MCA. It is considering whether to establish a national Mental Capacity Advisory Board, which would report to the Ministry of Justice and the Department of Health and produce an annual report for Ministers. It acknowledges the concern about DOLS and will ask the Law Commission to consult on and potentially draft a new legislative framework that will allow for the authorisation of a best interests deprivation of liberty in supported living arrangements and to consider any other improvements that should be made to DOLS as a result of the Supreme Court’s decision in P v Cheshire West County Council. The Government was not persuaded to change the current legal aid provisions. Click here for the House of Lords’ Select Committee report. Click here for the Government’s response.

The Press Association v Newcastle upon Tyne Hospitals Foundation Trust [2014] EWCOP 6, Peter Jackson J: in February 2014, the Judge had heard an urgent application seeking a declaration that it would be lawful for doctors to withhold a blood transfusion from LM, a 63-year-old Jehovah’s Witness with a history of mental illness. Her medical condition required a blood transfusion, but she had the mental capacity to refuse blood products in occasion with her beliefs. The Judge had directed that the hearing should take in place in public, as it was a case involving serious medical treatment, and had granted the declaration. He had also approved a reporting restriction order preventing the naming of LM, the medical and care staff and two Jehovah’s Witnesses who had given evidence at the hearing. LM died after the order had been made, but before the Judge had handed down his written judgment. The Press Association subsequently applied to discharge the reporting restriction order. The Judge considered Articles 8 and 10, the Court of Protection Rules relating to public and private hearings, and previous authority. The starting point was that where a case involves serious medical treatment, it will normally be heard in public but the privacy of the individual would be protected. Where the person had subsequently died, their legal rights did not necessarily end. The Court was still required to conduct a balancing act. Having conducted that balancing act, the Judge concluded that the part of the order conferring anonymity on LM should be discharged, but not those parts of the order prohibiting identification of the doctors/carers and the two Jehovah’s Witnesses. The Judge specifically commented that the Witnesses had acted to assist the court in an emergency and should not be exposed to unwanted publicity as a result. Click here for the judgment.

The Public Guardian v JW Case No. 12435380, 3 June 2014 (Senior Judge Lush): The attorney under a Lasting Power of Attorney (LPA) failed to pay his mother OW’s care home charges and was subject to investigation by the Office of the Public Guardian. Referring to Re Harcourt [2013] COPLR 69 on the Public Guardian’s powers of investigation, the judge revoked the LPA and appointed a panel deputy to sort out OW’s finances, who, once that was done, might consider standing down in favour of OW’s daughter, her appointment being a less restrictive option and more compatible with OW’s rights under Article 8 ECHR. Click here for the judgment.

Re G [2014] EWCOP 5 (Sir James Munby President of the Court of Protection): ANL, publishers of the Daily Mail, had sought to be joined as a party on proceedings (Re G [2014] EWCOP 1361) and their application was rejected as misconceived. On the application for costs, it was held that it was right to part from the general rule of no order for costs but that ANL should not pay the whole of the costs for reasons that included the public importance of the issues. ANL should pay 30% of the other parties’ costs. It should not be assumed that the same approach would apply in disputes as to the need or ambit of a reporting restriction orders in which very different considerations arose and conventionally there was no order for costs whatever the outcome; “the Family Court and the Court of Protection need more transparency, more scrutiny by the media, more reporting – all vital if there is to be more public awareness and understanding – not less”. Click here for the judgment.

LB Haringey v CM [2014] EWCOP B23 (Senior Judge Lush): The local authority applied to be appointed as deputy for property and affairs for GW, and CM, his niece, objected, proposing that she be appointed. The Special Court Visitor was asked to examine GW and report on his capacity, wishes and feelings. Rejecting CM’s application, the judge confirmed the law as stated in Re BM, with the addition that there was a need to ensure that P is not subjected to undue influence, referring to the UN Convention on the Rights of Persons with Disabilities, which may have an interpretive influence, and which states at Article 12.4 that state parties shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, and are free of conflict of interest and undue influence. Click here for the judgment.

In the matter of Gladys Meek [2014] EWCOP 1, HHJ Hodge QC: in April 2013, Senior Judge Lush had removed the patient’s property and affairs deputies: [2013] EWHCOP 2966, here. A new deputy had been appointed. The new deputy applied to the Court for a statutory will. The Judge directed himself that a statutory will had to be made in the patient’s best interests, that all the relevant circumstances must be considered including the patient’s past and present wishes and feelings, the beliefs and values that would be likely to influence her decision if she had capacity and other factors that she would be likely to consider if she were able to do so. The Court should also take into account the views of others, particularly those engaging in caring for the person or interested in her welfare and of any deputy. It also had to take into account what would be the position if the patient died intestate. The Judge made decisions as to which family members should be beneficiaries, he refused to benefit the former deputies given their earlier breach of trust, and he left the remainder to charity. He also heard submissions on whether the former deputies’ security bond should be called in, to redress their wrongdoing, and concluded that it should be. If it was not called in, the present deputy would take proceedings at the patient’s expense to recover the money so as to pay for her care needs. It was not in her best interests for her dwindling resources to be used in litigation. After the hearing, but before the judgment was handed down, Mrs Meek passed away and accordingly the Judge decided that there was no reason not to publish the judgment in full, identifying her. Click here for the judgment.

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