2014 07 Incapacity

Friday 1 August 2014

Share This Page

Email This Page

The Law Commission has announced that it is starting work on a report, containing recommendations for reform of the Deprivation of Liberty Safeguards (DOLS), following the decision of the Supreme Court in Cheshire West and the House of Lords’ select committee finding that DOLS were not fit for purpose. The report is expected to be published, with recommendations for reform and a draft Bill, in summer 2017. Click here for the announcement.

Redbridge LBC v G [2014] EWCOP 17, Russell J: the Judge had previously decided that G, a woman aged 94, lacked capacity to conduct litigation, and to decide on her financial affairs and the disposition of her property, and to make decisions about contact with others. The issue was whether C and F, who were said to be her carers in her home, should continue to live in her home and provide care, or whether a 24-hour care package should be provided and C and F required to leave G’s home. The local authority made allegations that C and F had been bullying, intimidating and manipulating G. The Judge found that C and F had behaved in the way alleged. She noted that G had consistently stated that she wanted C and F to continue to reside with her. She concluded that G’s wishes had been unduly influenced by C and that those statements should be treated with caution. She made the declaration sought by the local authority that it was in G’s best interests for them both to leave her home and for G to receive a package of care from local authority carers. She made an injunction against C and F. The injunction contained a penal notice. C was represented by Helen Curtis, from Garden Court Chambers. Click here for the judgment.

United Lincolnshire Hospitals NHS Trust v N [2014] EWCOP 16, Pauffley J: N was a woman in her early fifties, who had suffered a sub-arachnoid haemorrhage and was in a minimally conscious state. The issue was whether it would be lawful and in her best interests for the applicant Trust to make further efforts to establish and maintain a method of providing her with artificial nutrition. The evidence was that she was resisted to the insertion of a feeding tube and had repeatedly tried to pull it out. The Jude heard from her adult daughter and from her ex-husband who both said that N would not want the feeding tube forced upon her. The Judge directed herself that, although there is a strong presumption in favour of the preservation of life, that did not displace the patient’s best interests as the paramount consideration for the court. Medical treatment could only be ordered if the clinicians were willing to offer it on the basis of their clinical judgment. She drew up a balance sheet of the advantages and disadvantages of attempting to re-insert a feeding tube. There was no issue but that N did not have capacity. The Judge was satisfied that the treating doctors had considered the entire range of treatment options and took account of the information about N’s views and the wishes and feelings of her close family members. She concluded that it was not in her best interests to continue invasive, risk laden medical care ie artificial feeding and that it was lawful and in N’s best interests for the clinicians not to make any further attempts to secure a means of providing artificial nutrition and to withdraw the existing provision of intravenous fluids. Click here for the judgment.

A Mental Health Trust v DD [2014] EWCOP 11 Cobb J: DD was a 36 year old woman, around seven months with her sixth child. She had a mild to borderline learning disability and an autistic spectrum disorder. Her other children had been taken into care. DD and her partner (and father of her unborn child) BC had not co-operated with visits from social workers. A warrant had been obtained under s.135 Mental Health Act 1985 and, on execution, their house was found to be dirty and dingy, with a low level of hygiene and many animals. She indicated that she wanted the baby to be born at home. The applicants sought a declaration that she lacked capacity to make decisions as to her healthcare, and in particular to decide where to give birth and whether it should be a vaginal delivery or caesarean section, and a best interests declaration to permit them to remove her to hospital, to arrange for delivery by caesarean section and subsequently to assess her capacity to make decisions about contraception. The Judge found that DD did lack capacity to litigate and to make decisions about her care and treatment in connection with her impending labour, and that it was in her best interests to undergo a planned caesarean section in hospital. He also found that she lacked capacity to consent to be the subject of an assessment of her capacity to make decisions in relation to contraception and that it was in her best interests to be subject to such an assessment. The applicants were required to take all reasonable steps to minimise distress to DD and to maintain her dignity. He came to that decision having reviewed carefully whether DD’s decision-making was unwise, rather than evidence of her incapacity. The judgment contains a list as to what factors a prospective mother would need to be able to understand, retain and consider. He considered her views, which were a “significant factor” to which he paid close regard. The interests of the unborn baby were not to be taken into account. Click here for the judgment. In a subsequent judgment, [2014] EWCOP 13, Cobb J found that it was in DD’s best interests for an assessment of her capacity to make decisions about contraception to be undertaken, he made a best interests declaration authorising entry to her home and removal by force if necessary so that the assessment could be undertaken, subject to the applicant doing so in the least restrictive manner and trying first of all to obtain DD’s consent. He made a declaration that it was in DD’s best interests to receive short-term contraception in the form of a depo-provera injection. He considered this to be the least restrictive form of short-term contraception pending the assessment. Click here for the judgment.

Liverpool City Council v SG [2014] EWCOP 10 Holman J: SG was aged 19. She had been adopted, aged four, from Romania by an English couple. She had a learning disability, a disinhibited attachment disorder and quasi autism. Before she was 18, she was accommodated in a children’s home and remained there after her eighteenth birthday. Following the Supreme Court’s judgment in Cheshire West, it was accepted by the local authority that the arrangement at the children’s home amounted to a deprivation of her liberty. It sought authorisation to continue to provide accommodation at the home. The issue for the court was whether it had the power to make an order depriving an adult of his or her liberty in premises which are a children’s home. The Judge found that he did have the power, and that it was in SG’s best interest to make the authorisation. He noted that the judgment only applies to persons who have attained the age of 18, and that it did not apply at all to a person who may be detained in a residential school. Click here for the judgment.

We are top ranked by independent legal directories and consistently win awards

+ View more awards