Court of Protection case law update: February 2024
Lauren Gardner and Eleanor Suthern round up the latest Court of Protection cases of interest to practitioners.
Lincolnshire County Council v X & Ors [2023] EWCOP 52 & EWCOP 53
Factual background
This case concerns X, a vulnerable adult with a complex and difficult life history. X has a number of diagnoses which cause her to experience heightened anxiety, emotional regulation difficulties, and vulnerability to abuse and manipulation.
The underlying proceedings were brought by the local authority, who sought injunctions preventing LB and MK from having contact with X. Those injunctions were granted by Lieven J in March 2023. The local authority subsequently asserted that the injunctions had been breached, and brought committal proceedings against LB and MK.
The first judgment, handed down in July 2023, concerns an application made by the Official Solicitor for the contempt application to be heard in private, and for the respondents to the committal application not to be named. The Official Solicitor submitted that these exceptional steps were necessary in order to protect X’s interests, in order to reduce the risk of her experiencing significant distress and anxiety and being subject to reprisals from LB and MK’s associates.
The second judgment concerns the contempt application itself.
The law
In the first judgment, HHJ Tucker noted as a starting point that open justice is a fundamental principle in a democratic society which must be closely guarded, and that any departure from it should be subject to robust and rigorous scrutiny.
HHJ Tucker considered in detail the relevant domestic and ECHR case law, as well as the relevant Court of Protection Rules. In particular, she considered the recent decision of Esper v NHS NW London ICB [2023] EWCOP 29, in which Poole J considered the extent to which the Court of Protection Rules permitted the court to withhold the identify of a respondent in committal proceedings.
HHJ Tucker held that, where the court determines it is appropriate to hear contempt proceedings in private, then it is empowered to withhold the identity of a respondent pursuant to the court’s general power in r.4.2, notwithstanding that the more specific test in r.21.8(5) is not met. She did however acknowledge the tension between the two rules, stating that this may be an area where further judicial consideration will be required.
In the second judgment, HHJ Tucker set out the well-established legal principles concerning proceedings for contempt, including the requirement for clearly particularised allegations and for proof of service of the applications, the appropriate burden and standard of proof, and the purposes of sentencing for contempt of court.
Judgment
In the first judgment, HHJ Tucker concluded that the "combined effect of X’s presentation, diagnoses, lived experiences and consequences thereof are exceptional". HHJ Tucker went on to consider that "the best way to meet the interests of justice, permit the proper administration of justice, and protect P’s interests, is to hold the hearing in private", with a public judgment to be published thereafter [69]. HHJ Tucker postponed the issue of whether the respondents should be named until after the committal proceedings had been heard.
By the time of the second judgment, the Official Solicitor no longer sought an application to withhold the respondents’ names. The committal hearing proceeded in the respondents’ absence, and the incidents of contempt were found to have been proved. HHJ Tucker sentenced each respondent to 5 months’ in prison. In light of the lapse of time since the breaches occurred, HHJ Tucker considered it appropriate to suspend the sentences.
RO (Schedule 3 MCA 2005), Re [2023] EWCOP 55
Factual background
This case concerns RO, an Irish citizen in her twenties with a severe anorexic disorder, which is compounded by a constellation of other needs arising from her Autistic Spectrum Disorder, mild intellectual impairment and severe depressive disorder.
In 2021, RO was admitted to a specialist eating disorder facility (“the clinic”) within the jurisdiction of England and Wales. RO remains habitually resident in Ireland, and is therefore the responsibility of the Health Service Executive of Ireland (“the HSE”).
These proceedings were brought by the HSE for recognition and enforcement of an order of the Irish High Court, for RO to remain deprived of her liberty in the clinic, contrary to her wishes.
The law
Mrs Justice Theis DBE helpfully sets out the relevant law at paragraphs 8 – 12 of her judgment.
Section 63 and Schedule 3 of the Mental Capacity Act 2005 make provision for the recognition, enforcement and implementation of protective measures imposed by a foreign court (regardless of whether that country has ratified the 200 Hague Convention on the International Protection of Adults).
A “protective measure” is defined as “a measure directed to the protection of the person or property”, and can include a placement. As a general rule, the court cannot review the merits of the measures taken outside of the jurisdiction, except where the limited circumstances in paragraphs 19(3) and / or 19(4) apply.
In terms of the approach to applications under Schedule 3, Mrs Justice Theis DBE referred to the helpful checklist set out by Mostyn J in Re SV [2022] EWCOP 52.
Judgment
Mrs Justice Theis DBE was satisfied that the relevant requirements in Schedule 3 were met, and that none of the limited provisions pursuant to which the protective measure could be reviewed were applicable. The fact that the order of the Irish High Court had been made under the inherent jurisdiction made no material difference (given that it was made in accordance with the domestic law of Ireland at the time). As such, she made an order for recognition and enforcement of the order of the Irish High Court.
Mrs Justice Theis DBE went on to consider the proper management of these types of applications [22-29]. She confirmed that:
- In accordance with paragraph 17, PD 23A, the presumption was that applications under Schedule 3 of the Mental Capacity Act 2005 would be determined at an oral hearing if they involved a deprivation of liberty;
- There should always be a skeleton argument filed in support, outlining the relevant criteria and directing the court on how the criteria are satisfied by the supporting material lodged;
- Orders should only be made by a Tier 3 judge following an attended hearing, unless a Tier 3 judge otherwise directed;
- The supporting material should include a core bundle, including all specified documents [para. 27];
- The supporting material should also include a separate bundle consisting of other relevant material from the proceedings outside of the jurisdiction [28].
Lancashire and South Cumbria NHS Foundation Trust v BNK [2023] EWCOP 56
Factual background
This case concerns BNK, a 36-year-old man with a diagnosis of a severe learning disability, autism and Noonan syndrome, a genetic condition that stops typical development in various parts of the body.
The proceedings were brought by the NHS Trust for authorisation of its proposed dental treatment for BNK, including extraction under general anaesthesia. BNK lacks capacity to consent and was expected to object, perhaps aggressively, to the treatment, which may therefore require the use of reasonable force and restraint.
BNK had long-standing dental issues due to his love of sugary drinks and snacks and his refusal to brush his teeth [2]. There were concerns that BNK’s teeth were causing him pain, leading to episodes of challenging behaviour, and that BNK was experiencing episodes of facial swelling, attributed to abscesses in his mouth. Further, BNK was considered to be at risk of serious infection, including sepsis.
The NHS Trust identified three available options for BNK’s treatment. Firstly, do nothing. Secondly, general anaesthetic to repair / extract teeth as necessary. Thirdly, removal of all of teeth (i.e. full dental clearance). The NHS Trust submitted that option two was in BNK’s best interests, with the caveat that if BNK’s teeth were not functional or restorable upon examination, and / or if the process of BNK’s admission and treatment were disproportionately traumatic for BNK, then a full dental clearance should be carried out.
An additional potential complication was that BNK’s parents and BNK himself are Jehovah’s Witnesses, and object to blood transfusions on religious grounds, even if necessary to preserve life.
The law
The judge helpfully sets out the legal principles concerning capacity and best interests [7 – 15], including relevant human rights considerations [15]. The judge further sets out a number of published cases dealing with applications for authorisation of dental work, including the most recent case of South Tyneside and Sunderland NHS Foundation Trust v SA [2022] EWCOP 23 (Fam).
Judgment
The judge was satisfied that both options 2 and 3 were “overwhelmingly” to be preferred to doing nothing. As between options 2 and 3, the judge considered that option 2 was in BNK’s best interests, in order to allow him the possibility of enjoying some manageable and functional teeth for as long as he can.
The judge was satisfied that options 2 and 3 were compatible with BNK’s human rights and therefore lawful under s 6 HRA [30]. He outlined that even if the ‘imposition of restraint and the administration of treatment against BNK’s wishes reached the threshold of ‘inhuman and degrading’ treatment for the purposes of Article 3, a medical intervention which is a therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading and is therefore not a violation’ in accordance with NHS Trust v X [2021] 4 W.L.R. 11.
The NHS Foundation Trust v K & Ors [2023] EWCOP 57
Factual background
This case concerns K, a young person who suffers from a rare inherited condition which progressively destroys the nerve cells in the brain and spinal cord.
Since May 2023, K was repeatedly admitted to hospital with respiratory problems which have required her to be intubated and placed on a ventilator. K remains in intensive care. The view of her treating doctors is that she is reaching the end of her life, and that it is in her best interests to receive palliative care.
These proceedings were brought by the NHS Trust, in circumstances where it had proved very difficult to engage K’s family in discussions about end of life care [3]. There was no dispute that K lacks capacity, or that she will ever gain it [4]; as such, the issue in this case was K’s best interests.
The NHS Trust was not prepared to continue to treat K in intensive care with oral tracheal intubation in the longer term. The NHS Trust identified 2 potential options for K. Firstly, to extubate K and to provide palliative care. Secondly, to fit K with a tracheostomy under general anaesthetic. The NHS Trust considered option 2 to be in K’s best interests, but was prepared to implement option 3 if the court disagreed.
The position of K’s family, whilst somewhat unclear, appeared to favour tracheostomy.
The Official Solicitor, having heard oral evidence from the second opinion consultant, considered that tracheostomy was in K’s best interests.
The law
Mrs Justice Judd helpfully sets out the principles relevant to life-sustaining treatment, including the relevant sections of the Code of Practice, and the relevant case law, including Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67.
Mrs Justice Judd notes that the right to life must carry very great weight in any balancing exercise (W v M [2011] EWHC 2443) and that the burden of establishing that the discontinuance of life-sustaining treatment is in a person’s best interests lies with the he who asserts that it should be withdrawn (R (Burkes) GMC (OS Intervening) [2005] QB 424).
Judgment
Notwithstanding the Official Solicitor’s submissions in favour of a tracheostomy, Mrs Justice Judd concluded that such a course of action was not in K’s best interests. Mrs Justice Judd placed weight on the expert evidence, that K would be able to tolerate the interventions required with a tracheostomy without sedation or physical restraint [40]. Further, she would be unlikely to benefit much, if at all, from being more awake, but rather would be likely to suffer in a way that cannot easily be explained to her.
Mr Justice Judd concluded that "considering K’s best interests in the widest sense, the prospects of K being able to obtain any benefit from a longer life and/or interaction with her family following a tracheostomy are too poor to outweigh the significant burdens that this will entail" [42]. She went on to express her deepest condolences to K’s sister and all of K’s family.
Lauren Gardner and Eleanor Suthern are barristers at Spire Barristers.
