Court of Protection update: February 2025

Sarah Hutchinson rounds up the latest Court of Protection rulings of interest to practitioners.

EM, Re (Deprivation of Liberty, Care Planning & Costs) [2024] EWCOP 76 (T2) (19 December 2024)

This case concerned EM, a female who is currently 18 years old, who was diagnosed with ADHD in 2020 and ASD in June 2023. EM is currently residing at ‘the placement’. 

In March 2023, EM was detained under section 2 of the Mental Health Act 1983 after being reported as missing from home. Since then, there was an escalation of incidents involving self-harm and suicidal ideation. Proceedings were issued in the High Court in August 2023 (whilst EM was still a child) inviting the court to invoke its inherent jurisdiction to authorise the deprivation of her liberty. Following EM being assessed as lacking capacity (following assessments being undertaken on 1 December 2023 and 28 January 2024) the proceedings then moved to the Court of Protection in July 2024.

The court had to determine three issues. Firstly, the issue of capacity, secondly care planning in respect of what is in EM’s best interests, and finally the Official Solicitor’s application for costs. The basis for the costs application was that the OS had not been able to conduct proceedings on EM’s behalf effectively due to the local authority’s non-compliance with the previous directions made by the court.

Capacity

The written evidence of Dr Khan, the Consultant Psychiatrist responsible for EM’s care, explained that it is probable her capacity to make relevant decisions about her residence and care fluctuates. As a result, the court asked the parties to leave the issue of capacity to one side because the court would need to consider this issue at a later date.

Care planning

In relation to the care plan, it troubled the court that the local authority was applying to withdraw proceedings and to “lift the DOLs” given that the court’s view was that EM was still likely at times to act in a dangerously dysregulated way and posed a significant risk to her own safety. The reasoning why the local authority took this position was because new, less restrictive placements had been identified but there was a concern that while EM was subject to a “DoLs order” there may be difficulty in obtaining a new placement for her.

Legal framework

The court sought to clarify the much-used term “on a DOLS”. It explained that the acronym DoL comes from the wording of Article 5 of the European Convention, and it simply stands for “deprivation of liberty”. The term “DOLS” refers to Schedule A1 of the MCA and stands for the Deprivation of Liberty Safeguards. The court went on to explain that EM is not “on a DOLS” but instead she is subject to an order that authorises her deprivation of liberty.

It clarified that “to be “on” or “under a DoL” means to be subject to an order approving and authorising a care plan which allows the carer to use restrictions that amount to a deprivation of liberty in the best interests of P, the emphasis should be on the care plan itself and not the legal status of the restrictions that can be used.”

The court acknowledged that the starting point should be sections 1-4 MCA, and these provisions allow “decision makers to make decisions for people who cannot make those decisions for themselves and under these provisions it enables decision makers to decide on care plans that meet the best interests of the person concerned.”

Applying this, the court explained “that if a care plan is in P’s best interests and it adopts the least restrictive option then that is what the decision maker must choose.  If that plan involves or may involve a deprivation of P’s liberty, then it needs to be authorised by the court and it will be if it is necessary and proportionate in furthering P’s best interests.”

The court confirmed that if a person has reached the age of 18 or is older and they are detained in a hospital or a care home, then the care plan can be authorised under Schedule A1 of the MCA. However, if a person has not yet reached the age of 18 or is somewhere other than a hospital or a care home then the court may authorise the care plan under sections 15 and 16 MCA.

Legal framework – Costs

The relevant law for a costs order is summarised in Sandwell & Birmingham Hospitals NHS Trust v GH (by the Official Solicitor) [2023] EWCOP 50 at paragraphs [46] to [53]. In particular, the court needs to consider the basic rule in Court of Protection welfare cases is that there is no order for costs (r. 19.3).

However, COPR r.19.5 provides that the court may depart from that basic rule if the circumstances justify it. In deciding whether to depart from the basic rule is justified the court shall have regard to all the circumstances including the conduct of the parties, whether a party has succeeded on part of that party’s case, even if not wholly successful; and the role of any public body involved in the proceedings.

Judgment

The court approved the care plan at the placement, which amounted to a deprivation of EM’s liberty because the restrictions imposed under the care plan were said to be “necessary, proportionate and in her best interests.” The court reminded the parties that the court does not create the restrictions, but approves them.

In relation to the costs application, the court determined that there were numerous breaches of a prior order in the proceedings that resulted in a wasted hearing as the Official Solicitor was unable to represent her client by “scrutinising the local authority’s case and putting forward any positive alternative case.” The court concluded that due to the hearing not taking place and therefore taking place a month later, the orders that were made should have been made a month prior. The court made an order for the local authority to pay the Official Solicitor’s costs of the wasted hearing due to local authority not complying with previous court orders.

Leicestershire Partnership NHS Trust & Anor v PQ [2024] EWCOP 73 (T3) (05 December 2024)

This matter concerns an application made by the relevant NHS Trusts for authorisation to carry out a planned caesarean section in respect of PQ, whose baby in utero reached full term on the date of the application, the 28 November 2024. PQ is a 29-year-old female who has been diagnosed with treatment-resistant paranoid schizophrenia and has been a known user of Class A drugs, including cocaine, before and during her pregnancy.

Capacity assessments concluded that PQ is unable to understand, use or weigh information about the birth.

PQ was recalled from a community treatment order to a mental health unit on or around 13 November 2024 before being transferred on 28 November 2024 to the hospital where she was due to give birth. This matter was brought urgently before the court on the 29 November 2024 as the applicants sought authorisation for an urgent elective caesarean section to be carried out due to signs which were suggestive of pre-eclampsia. As the court could not determine the issues on this date, it was adjourned until 01 December 2024 and by good fortune, the risk of pre-eclampsia dissipated over the weekend. As a result, the applicants altered their position. Instead of seeking authorisation to perform an elective caesarean section immediately, the position shifted to seeking authorisation to perform an elective caesarean section no earlier than 05 December 2024, unless PQ’s waters broke prior. After the treating Consultant Obstetrician had given her evidence, the Official Solicitor agreed that this would be the most appropriate way forward for PQ.

However, the court noted the procedural failings on behalf of the applicants, as they had not made a timely application for the court to determine this issue, rather, the application was made on the date PQ reached full term.

Law

The court applied the well-established principles in sections 1-3 of the Mental Capacity Act 2005 and concluded that PQ lacked the relevant capacity to make decisions regarding her medical treatment.

The legal principles for best interests are also well-established and the court had regard to the checklist of factors which are set out in section 4 of the Mental Capacity Act 2005. In Aintree University Hospital NHS Trust v James [2013] UKSC 67 it was expressed that in weighing up best interests, where the wishes and feelings of the patient can be ascertained, they must be given proper consideration but are not determinative.

In relation to the lack of a timely application before the court, the court noted that the applicants  did not follow the judgment in NHS Trust v FG [2014] EWCOP 30, which sets out what steps are required of applicant Trusts in cases concerning obstetric care such as making an application no later than 4 weeks before the due date.

Judgment

The court considered several options available to expectant mothers and concluded that in PQ’s case, induced labour would not be appropriate “as it would require a high degree of co-operation from PQ and prolonged monitoring, investigation and examination, concluding that in the absence of such co-operation, the medication would be dangerous to both PQ and the baby.”

The court concluded that the other two available options to consider were:

1. A spontaneous labour which may result in an emergency caesarean section or;
2. An elective caesarean section.

The court determined that the approval of the applicant’s application for authorisation to carry out an elective caesarean section would be in PQ’s best interests for the following reasons:

1. “There is an increased risk to both PQ and/or the baby of physical harm from 1 week after full term, which can be mitigated by a planned caesarean section.
2. there would be increased risk to PQ of emotional or psychological harm if the caesarean section is not carried out
3. PQ’s views are important, the court took into consideration that her preference would be for a natural birth with as little intervention as possible, but it also acknowledged that in the light of at least one comment made about willingness to accept a caesarean section, there is a degree of nuance about them
4. an elective caesarean section would take place in a calm, controlled environment, with an all-female team of people she trusts.”

Oldham Metropolitan Borough Council v KZ & Ors (Rev1) [2024] EWCOP 72 (T3) (04 December 2024)

These proceedings concern KZ, a 20-year-old male who is profoundly deaf and uses BSL. Since February 2024, KZ has resided at his current placement, TX, a specialist placement which meets his current needs. In his current placement, his care and support requirements are agreed to constitute a deprivation of his liberty.

These proceedings were commenced in January 2022 and nearly concluded in January 2024 on the basis that expert evidence concluded that KZ lacked capacity in all relevant areas, including residence, care and support and contact. However, since KZ has been supported by his current placement, TX, questions were raised about the previous capacity assessment. In 2024, Dr O’Rourke, a consultant psychologist who has expertise in assessing deaf people, concluded in her assessment that KZ does have capacity to make decisions about residence, care and support and contact with his family, save for occasions when he becomes dysregulated when he may lack capacity. In those circumstances, decisions would need to be made in his best interests.

The key points from her assessment are as follows:

1. She considered KZ is ‘very far from the diagnosis of a learning disability’ and instead suffers from extreme language deprivation.
2. the previous assessment should be discarded as it was undertaken by a non-deaf specialist without suitable specialist interpreting support.
3. While KZ lacks capacity in relation to conduct litigation, to engage in sexual relations, internet use and social media, finances, tenancy. However, hehas capacity in relation to his residence, care needs and contact with his family. KZ has capacity to make those decisions and can discuss and weigh the relevant information when he is calm, but his capacity therefore fluctuates, and he loses capacity when he becomes upset.

Based upon the new capacity assessment, the local authority sought anticipatory declarations to enable them to put a care plan into place which reflected the new capacity assessment.

Law

Section 1(2) of the Mental Capacity Act (MCA) outlines the fundamental principle that a person must be assumed to have capacity unless it is established that he lacks capacity. Section 1(3)-(4) provides further general principles that a person should not be considered as lacking capacity unless all practicable steps to help them have been taken without success and that making a merely unwise decision does not indicate that a person lacks capacity.

Section 2 and section 3 of the MCA defines a person who lacks capacity as a person who is unable at that material time to make a decision for himself, in relation to a particular matter due to an impairment of the mind or brain, they cannot understand, retain, use or weigh relevant information, or communicate the decision.

Section 5 of the MCA gives a general authority, for a person to act in connection to the care or treatment of another person (P), if before commencing the act they take reasonable steps to establish whether P lacks capacity in relation to the particular matter in question and when commencing the act those caring for him reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done.

Section 6 of the MCA sets out limitations on section 5. It defines restraint and states it is only permitted if the person using it reasonably believes it is necessary to prevent harm to P and if the restraint is a proportionate response to the likelihood of P suffering harm and the seriousness of that harm.

Section 15 of the MCA gives the Court power to make declarations as to whether a person has capacity or not. The court also has the power to make declarations as to the lawfulness of an act already done or yet to be done in relation to that person.

Section 16 of the MCA gives the Court power to make decisions on behalf of a person who lacks capacity in respect of their personal welfare or property and affairs.

In Leicestershire County Council v P and Another (Capacity: Anticipatory Declaration) [2024] EWCOP 53 [2024] EWCOP 53 concluded at [137] that the court did have jurisdiction to make an anticipatory declaration under section 15(1)(c) MCA 2005 although the court declined to make such a declaration on the facts of that case.

Judgment

The court accepted Dr O’Rourke’s assessment of KZ’s capacity.

The court determined that the correct approach was for the court to make the anticipatory declarations regarding KZ’s capacity to make decisions regarding residence, care and support and contact with his family as this will manage the periods when he loses capacity, which can be identified by those who care for him.

In addition, the court provided the following guidance for mental capacity assessments of a deaf individual fluent in BSL:

‘(1) Any mental capacity assessment of a deaf individual fluent in BSL should ideally be undertaken by an assessor who is suitably qualified to communicate at the relevant level of BSL. If that is not done, there should be a clear explanation why and what measures, if any, are proposed to be in place to manage that gap.

(2) The assessor should ideally have a background in understanding deafness and engaging with the deaf community. If they don’t, there should be a clear explanation why they are undertaking the assessment without such knowledge.’

Sarah Hutchinson is a pupil barrister at Spire Barristers.