Welcome
To this second edition of our COP newsletter for 2021. The courts have been busy, as can be seen from the newsletter and other cases reported on Bailii and the Court of Protection Hub.
As an addendum to the brief article on 'Hybrid Courts', the president of the Family Division, Sir Andrew McFarlane, launched a two-week rapid consultation on remote, hybrid and in-person hearings on 10 June 2021 (consultation closed 27 June 2021). This consultation will focus on the recovery following the Covid-19 pandemic, identifying good practice from remote and hybrid hearings, and providing an evidence base to assist with decision-making on future ways of working. I understand that the findings will be published in time for the president's conference in July 2021, so watch this space.
The DHSC has also, on 11 June 2021, published six more factsheets about the Liberty Protection Safeguards (LPS), which - with my thanks to Alex Ruck-Keene - can easily be accessed by following this link to his website:
While on the subject of LPS, it remains to be seen whether the new proposed implementation date of April 2022 will be met, as we are still waiting for the draft supporting Code of Practice (as part of the overall updated MCA code) and regulations. Nonetheless, there is plenty that can be done in preparation and
we are offering support for planning, training and implementation. Watch out for our webinars in July and October 2021, and February 2022, and do contact the team if you would like to discuss how we can help.
Finally, as always, if there are any particular matters or issues that you would like us to cover in future editions, please let Emma Pollard or me know.
Kiran Bhogal
Partner and Head of Health Advisory London
kiran.bhogal@hilldickinson.com
COURT OF PROTECTION CASES FROM APRIL TO JUNE 2021
Here is a round-up of the key Court of Protection cases from this quarter which we believe our readers will be most interested in. We have highlighted the key issues arising in each case, please follow the links within the case summary to access the full judgment. Contact our team to discuss any particular case in more detail.
Treating anorexia: A Mental Health Trust -v- ER & Anor [2021] EWCOP 32 (30 April 2021)
ER has suffered with an eating disorder in various forms since she was a teenager. She is now 49 years old; over the past two years she has significantly physically deteriorated and is in renal failure.
The parties agreed that ER lacks capacity to make decisions concerning her anorexia but has capacity to make decisions for treatment in respect of her physical health problems. The parties also agreed that treatment for anorexia, including being admitted to a psychiatric hospital or specialist eating disorder unit, should not be forced upon ER against her wishes.
Despite there being agreed evidence before the court of ER lacking capacity to make decisions concerning her anorexia, the court heard from the consultant psychiatrist and clinical lead for eating disorders in the North West before making a declaration to that effect. The court then went on to make the declarations sought by the parties in the terms set out above. The relevant local authority and CCG were also joined as parties and directed to propose further support in the community, as it was considered that this could much improve ER's mood and potentially improve her short-term physical health.
COVID-19 vaccination: SS -v-London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 (30 April 2021)
In contrast to previous cases concerning COVID-19 vaccinations (the vaccine), Hayden J deemed it not to be in the best interests of SS, an 86-year old woman with a diagnosis of dementia, to have the vaccine. This was because (a) SS has a history of declining vaccinations which pre-dated her dementia diagnosis; and (b) she would require significant restriction and restraint in order for the vaccine to be administered, which was likely to diminish the trust that had been built up between SS and her carers.
Capacity to decide to engage in sexual relations: A Local Authority-v- DY & Others [2021] EWCOP 28 (10 May 2021)
Knowles J held that an 18-year old woman did have capacity to decide to engage in sexual relations on a general non-specific basis, notwithstanding her diagnoses of two chromosomal duplicities, fetal alcohol spectrum disorder, a moderate learning disability and developmental trauma disorder or complex post-traumatic stress disorder.
It was considered that the local authority's concerns about the risk of DY being abused or exploited could be addressed through an appropriate package of care and contract arrangements, decided in DY's best interests. This case serves as a useful reminder not to set the bar too high when it comes to analysing capacity (ie P's understanding of the distinction between consenting to sexual relations within and outside a relationship), and not to make applications for a prospective declaration (ie whether DY had capacity to engage in sexual relations in specific circumstances) as the Local Authority sought which, while permissible pursuant to section 15 of the Mental Capacity Act 2005, are exceptions to the general approach that capacity to decide to engage in sexual relations should be assessed on a general non-specific basis.
Please see the below article: P's right to have sex with a sex worker for an analysis of another recent case relating to capacity and sex.
Pregnancy and agoraphobia: A NHS Foundation Trust -v- An Expectant Mother [2021] EWCOP 33 (13 May 2021)
This case concerned an expectant mother who suffers from such severe agoraphobia that there was a risk that she may not be able to travel to hospital for the birth of her baby, even if that became a medical imperative. The evidence was that the agoraphobia exerted a significant effect on her ability to weigh matters in the balance if the activity entailed her leaving her home. This had been the case throughout her pregnancy, with her being unable to attend hospital for scans.
Holman J concluded the expectant mother lacked capacity to make decisions about whether her baby should be born at home or in hospital, and declared it to be in her overall best interests for her to be transferred to hospital for a planned delivery. He also concluded it to be in her best interests for some trained and professional force and restraint to be used to transport her to hospital, if the necessity arose.
Discontinuing dialysis: University Hospital Birmingham NHS Foundation Trust -v- AI & K [2021] EWCOP 37 (26 May 2021)
The Trust in this case sought a declaration that it was both lawful and in the best interests of AI, a 48-year old man reaching the end of his life, to discontinue any further attempts to provide dialysis.
AI had a recent history of non- compliance with dialysis while in the community leading to emergency admissions to hospital. There was concern that although AI was assessed as lacking capacity to make decisions surrounding his dialysis treatment on account of diagnosed schizophrenia, his wishes and feelings, which often saw him only becoming compliant with dialysis when he was physically weak, should not be overridden.
In his judgment, Hayden J noted that AI had consistently indicated that he did not want further dialysis. On the medical evidence before the court, Hayden J was satisfied that reinstating dialysis created significant risks in light of the deterioration in AI's health. Declarations were made that it was lawful and in AI's best interests not to receive further dialysis against the wishes of his family.
A DoLS authorisation can be valid despite the wrong patient name being used repeatedly: YC and (1) The City of Westminster (2) SC [2021] EWCOP (27 May 2021)
This case concerned YC, an 86-year old with dementia who lives in a care home. In June 2020, the local authority granted a standard authorisation, authorising the deprivation of liberty in YC's best interests. The 'Evidence of Supervisory Body Scrutiny' section of Form 5, which provides the formal authorisation of the deprivation of liberty, erroneously referred to YC as "Ms Hull" a total of 19 times.
YC's representative had sought a declaration that the standard authorisation was invalid, because these errors indicated a lack of adequate scrutiny and called into question the validity of the decision made by the supervisory body. Her Honour Judge Hilder (Senior Judge of the Court of Protection) heard the case on appeal and was "satisfied that the first instance judge was entitled to conclude that the errors identified in the Form 5 Standard Authorisation relating to YC were merely 'typographical'", and the appeal was dismissed.
HHJ Hilder was however clear that "the errors in this case should not have happened" and due care must be taken when completing DoLS documentation. A salient reminder to those completing forms, whether for deprivation of liberty or otherwise, to ensure that the forms are accurately and properly completed.
Rachel Kelly-Brandreth
Associate
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