Court of Protection case review

Lauren Gardner reports on some significant recent judgments in the Court of Protection.

PH & Anor v Brighton and Hove City Council [2021] EWCOP 63 (23 November 2021)

This application was made by the BBC and Sky to disapply a Transparency Order in relation to Tony Hickmott, who has learning disabilities, autism, and has been detained in hospital for over 20 years. The application was supported by Mr Hickmott’s parents. The care provider and the Official Solicitor (acting as Mr Hickmott’s litigation friend) opposed the application.

The test for relaxing a Reporting Restriction Order is to apply a balancing test between Article 8 (protection of privacy and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights. Lord Steyn laid out further guidance in Re S (A Child) (Identification: Restrictions on Publication) 2005 1 AC 593 at para [17]:

First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.

Firstly, the applicants argued that the reporting restrictions should be relaxed because Mr. Hickmott’s situation had already been widely reported in national media, including his name, photograph, and location. This meant that Article 8 is no longer engaged as the information is already in the public domain. Moreover, the applicants argued that the interference with Article 10 rights is disproportionately high because the media cannot reasonably report on the matter unless the court relax the Transparency Order.

Secondly, the applicants argued that Mr Hickmott’s parents support the application as they want to raise awareness of their son’s situation, having been detained for almost 20 years. Although his parents acknowledged that Mr Hickmott lacks capacity, they considered that his wishes would be to go home and he would want every effort to be made to do so, meaning that lifting the reporting restrictions would be advantageous to him. The applicants argued that stories are more attractive to readers when they are referred to an identifiable individual, and the proceedings are clearly a matter of public interest. The applicants made clear that they did not wish to embark on a ‘witch hunt’ but wish to report responsibly and fairly, and they should be allowed to articulate criticism of any part of the system if appropriate.

On the other hand, the care provider argued that Mr Hickmott’s right to privacy would be undermined if the restrictions were lifted. They also argued that the impact on the hospital staff would be significant and may put other patients at risk. The Official Solicitor supported these arguments.

Senior Judge Hilder allowed the application. She considered that the circumstances of the case certainly fell into the domain of proper public interest, and there should be open debate on an informed basis about the subject. She gave significant weight to the fact that the reporting restrictions effectively prohibited any reporting of the proceedings, because of the risk of jigsaw identification. Senior Judge Hilder also gave weight to the fact that the parents of Mr Hickmott supported the application, because it is “their story too.”

Cambridge University Hospitals NHS Foundation Trust v AH [2021] EWCOP 64 (13 December 2021)

AH was a 56-year-old woman, who had been an inpatient at Addenbrooke’s Hospital since the end of December 2020 after being admitted with severe symptoms of Covid-19. AH was (at the time of the proceedings) being cared for in a critical care unit and was dependent on mechanical ventilation, continuous nursing care and nutrition and hydration being delivered through a nasogastric tube. The medical evidence was complex, but in summary the COVID-19 virus had caused AH to suffer substantial neurological damage. She has a significantly diminished life expectancy of less than 12 months, and the medical evidence was sadly that the ventilator was extending her pain and “protracting her death”.

The central issue in the proceedings was whether AH’s ventilatory support should continue. It was agreed that AH lacked the capacity to give or withhold consent for medical treatment, although Hayden J noted that AH was able to feel and show some degree of emotion, such as pain, distress, but also comfort from the presence of her children and peace from prayers from the Koran and films shown to her on her iPad. Moreover, AH could respond to short and focused questions.

Hayden J decided that it is not in AH’s best interests that ventilation be continued indefinitely, and ventilation should be discontinued by the end of October 2021. Hayden J held that AH’s best interests are not presently met by ventilatory treatment in the ICU, because it is medically futile and protracting physical and emotional pain. Hayden J was clear that the Official Solicitor’s suggestion of ventilation away from the ICU could not be regarded as medically safe. However, he held that AH’s best interests are such that ventilation should remain in place until all her four children and family members can be with her, and Hayden J was satisfied that this is what AH would want, even though it may cause her further pain. He also held that AH should be moved to a place which protects her privacy and affords her greater rest.

Hayden J noted that “none of the options in this case is free from risk or without ethical challenge. Ultimately, they have to be confronted as best we can, it is impossible to avoid them.”

MM v A City Council [2021] EWCOP 62 (07 December 2021)

MM has mild learning disabilities, Dissocial Personal Disorder, and misuses illicit substances.

MM moved to a 24-hour supported resident placement in March 2020 after trying numerous failed placements and a period of detention under the Mental Health Act. MM was subject to a standard authorisation under the Mental Capacity Act (MCA), but in March 2021 he frequently went missing from the placement. As a result of this absconding and threatening behaviour towards staff, a decision was made to move MM to a more restricted placement in April 2021.

Proceedings were brought in March 2021 under s21A MCA to challenge the standard authorisation but ended in October 2021 by agreement after the second placement refused to take MM due to his perceived risk (despite MM’s willingness to move there).

The judge approved the final Order for MM to remain at the first placement. The Council and those acting for MM agreed that, even though the Order gave MM some freedom which he could use in a way to harm himself, increased restrictions would not be in MM’s best interests.

Lauren Gardner is a future pupil barrister at Spire Barristers.