2014 08 Incapacity

Monday 1 September 2014

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Re X & others (Deprivation of Liberty) [2014] EWCOP 25 (Sir James Munby, President): several cases were listed before the President so that he could give guidance on deprivation of liberty (DOL) applications following the Supreme Court’s decision in Surrey County Council v P, the “Cheshire West” case. This is a preliminary judgment, answering 25 procedural questions. Detailed reasons for some of his answers will be in a subsequent judgment. Any authorisation of a DOL must be by a judge, not by a court officer. There may be cases where a judge can make the initial determination on the papers, so long as there is an unimpeded right to request a speedy review. “Triggers” which should mitigate against a decision being made on the papers include: whether the application is contested by the patient (P) or by anyone else; any failure to comply with the requirements contained in the application form; any concerns arising out of information contained in the application form, in particular relating to P’s wishes and feelings; the reasons for urgency, whether or not P objects; and any possible conflict with any advance decisions made by P. Medical evidence is essential in order to establish unsoundness of mind but, where the facts are clear, evidence from a GP rather than an expert psychiatrist might suffice. The evidence should be succinct and focussed. P should always be given the opportunity to be joined to an application, and if joined, must have a litigation friend. If P is not joined, he or she should still be given support necessary to express views about the application and to participate to the extent that he or she wishes. Where a DOL has been authorised, there should be reviews by a judge, annually unless a shorter period is required. The review may be on the papers if appropriate, whether or not the initial authorisation was made on the papers or after an oral hearing. A litigation friend for P does not need to act by a solicitor but, if he or she does not have rights of audience, he or she would need the permission of the court in order to act as an advocate for P. A number of COP Rules, Practice Directions and forms require amendment in order to achieve this process. Para 35 of the judgment contains a list of all the relevant questions to be answered in the application form. The front page of the application form should include whether the application is urgent and whether there is reason to believe that P or someone else challenges or is likely to challenge any of the matters in the application or might object to the order sought. Standard form orders are to be designed. Bulk applications are not lawful; separate applications must be made for each individual but where a number of individuals are concerned, there could be a single generic statement in addition to information specific to each individual. Click here for the judgment. Bethan Harris of Garden Court Chambers appeared for one of the local authorities.

Sandwell & West Birmingham NHS Trust v CD [2014] EWCOP 23 (Theis J): AB was a 20 year old woman who had cerebral palsy, a severe learning disability, diabetes, epilepsy and other conditions. She had been admitted to hospital on 12 June 2014 suffering from pneumonia. It was agreed that she lacked capacity to make decisions relevant to her medical care. The Trust had brought an urgent application for a declaration concerning life sustaining treatment, fearing that she would deteriorate over a weekend. The application was made in the afternoon of 20 June 2014 and the hearing took place between 5.15pm and 9.45pm. During the course of the hearing (but not before), the Official Solicitor had been contacted and had agreed to represent AB. The parents and treating doctor had participated by telephone. It emerged that there was no need for an urgent declaration that evening. At the final hearing, on 30 July 2014, agreement was reached that it would not be in her best interest to have life sustaining treatment and a palliative care plan was agreed to by the parents and approved by the Judge. The judgment contains guidance as to urgent applications, given omissions in this case. The Trust should have made suitable and sensitive arrangements for the parents to be able to participate in the urgent hearing (they had been on the telephone in the hospital’s public waiting room). A longer notice period might have enabled the parents to obtain public funding. The Trust should have alerted both the Official Solicitor and the Court at the earliest opportunity and medical notes should have been sent to the OS. A word version of the draft order sought should be provided. The statement in support of the application should give information about the history and AB’s quality of life. These observations apply to applications made in respect of an adult without capacity and those made in respect of medical treatment for a child. Click here for the judgment.

NHS Trust 1 (1) NHS Trust (2) v FG (by her litigation friend, the Official Solicitor) [2014] EWCOP 30: (Keehan J): FG, who had schizoaffective disorder, was in the late stages of pregnancy. The Trusts sought orders to permit them to undertake various steps and measures in relation to her labour. The court gave important detailed guidance on the need to apply to the court and steps to be taken where a pregnant woman lacks, or may lack the capacity, to make decisions about her obstetric care resulting from a diagnosed psychiatric illness, in the following circumstances: the interventions proposed probably amount to serious medical treatment (PD 9E); there is a real risk that she will be subject to more than transient forcible restraint; there is a serious dispute as to what obstetric care is in her best interests; or there is a real risk that she will suffer a deprivation of her liberty that cannot be authorised under s 4B or Schedule A1 MCA 2005. The guidance also states that it may be appropriate to make an application to the court in cases which do not fall within these categories and if made, the guidance should be followed. Click here for the judgment.

The Public Guardian v AW & DH [2014] EWCOP 28 (Senior Judge Lush): this was an application by the Public Guardian to revoke and cancel the registration of a lasting power of attorney (LPA). ON was aged 98. She had executed a LPA for property affairs, appointing her two daughters jointly and severally to be her attorneys. She lived with one daughter, AW. The second daughter, DH, contacted the OPG concerned about excessive expenditure from OB’s account. The Public Guardian investigated. A LPA may be revoked by the Court if the donor lacks capacity to revoke it and the attorney has behaved, or is behaving, in a way that contravenes his or her authority is or not in the donor’s best interest, or the attorney proposes to behave in such a way. The Judge was satisfied that OB did lack capacity and that AW had contravened her authority by taking advantage of OB’s position, in spending large amounts of money on adaptations to her home. He commented that the Court would have been pleased to consider an application by AW to award her an appropriate amount for gratuitous care provided to her mother and could have considered various options regarding improvements and adaptations to her home. Alternatively, there could have been a written agreement between OB’s and AW’s legal advisers. However, those steps had not been taken and AW had also failed to act in her mother’s best interest when she refused to consult or take into account the DH’s views. The appointment of AW as attorney was revoked. DH was content to disclaim her appointment and for a panel deputy to be appointed. Click here for the judgment.

Islington LBC v QR [2014] EWCOP 26, (District Judge Batten): The issues were whether QR had capacity to make a decision to terminate the tenancy of her council flat and enter a new supported living tenancy and whether she had capacity to litigate. QR was not represented by a litigation friend at the hearing. The judge identified a series of decisions that QR needed to make in relation to the move to supported living and then identified a list of factors in relation to each of those decisions that constituted the relevant information QR needed to understand, use and weigh for the purposes of ss 2 and 3 MCA 2005. Having heard competing expert opinion and from QR herself, the court held that QR was not able to understand, use and weigh every one of the relevant factors due to her inability to accept her diagnosis and need for treatment; she therefore lacked capacity to make the decisions. As regards litigation capacity, this was “one of those very rare cases where a person may not have subject-matter capacity but has litigation capacity”. QR was stable as regards her mental illness and recognised many of the realities of her situation. She was able to manage her life and make most of her decisions herself. She could understand the court process. Removing a person’s capacity to litigate was a significant interference with their rights. Click here for the judgment. Bethan Harris of Garden Court Chambers appeared on behalf of QR.

Re UF (No. 2) [2014] EWCOP 18, (Cobb J): It was in the best interests of UF, aged 84, who had vascular dementia, to continue to reside in a care home and not to return home for a trial period with a 24-hour care package. The Official Solicitor argued on her behalf for the trial period, supported by the opinion of an independent social worker which marginally favoured a return home. It was recognised that the period at home may not last more than 12 – 14 months or so as UF’s financial resources would expire. It was proposed that the cost of care could be met under a deferred payment agreement of the kind authorised in Westminster City Council v Sykes [2014] EWHC B9 (COP). The s 1(6) MCA 2005 requirement to have regard to whether the purpose can be effectively achieved in a way less restrictive of the person’s rights and freedom of action requires an analysis of the specific care regime in each setting. Even if it were concluded that the simple fact of living at home was less restrictive than living in a care home, such consideration must yield to a wider best interests analysis (paragraphs 82 – 85). Whilst not underestimating the value to people of living out their lives in their own homes, the court could not be satisfied that when expressing the wish to “go home” she had a consistent or clear idea of what that meant. Charles J gave judgment at an interim hearing on the appointment of family members as litigation friends and non-means tested public funding in relation to cases concerning deprivation of liberty ([2013] EWCOP 4289). Click here for the judgment.

An NHS Trust v Mrs J (by her Litigation Friend, the Official Solicitor) [2014] EWCOP 2675, (Bodey J): Mrs J, aged 79, had a diagnosis of schizophrenia and persecutory delusions. She resided in a care home under a standard authorisation for deprivation of liberty (Schedule A1, MCA 2005). She refused to consent to treatment for cancer. Declarations were granted as to her lack of capacity to consent to treatment and to authorise such treatment as in her best interests. The court weighed the advantages and disadvantages of requiring Mrs J to have treatment she did not want and which would potentially cause her considerable emotional distress. Experienced professional opinion was unanimous, and was supported by the Official Solicitor, that it was in Mrs J’s best interests to undergo the investigations and surgical intervention. Click here for the judgment.

Transforming the Services of the Office of the Public Guardian: Enabling Digital by Default, 21 August 2014: The Office of the Public Guardian is redesigning its lasting power of attorney forms, expanding the range cases for which a reduced application fee is payable and starting to launch a digital tool for second tier searches of its register and to provide intermediate access to the register for accredited parties. The redesigned forms will be launched by April 2015. Click here for the document and click here for the impact assessment.

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