Court of Protection case update: January 2025

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

Aberdeenshire Council v SF (No 4) (Residence) [2024] EWCOP 67 (T3) (21 November 2024)

This case concerns a Scottish woman (SF) in her 40s who has diagnosis of moderate intellectual disability, autism spectrum disorder, associated periods of severe anxiety, and difficult to treat schizoaffective disorder (bipolar type). It was agreed that SF lacked capacity to make decisions about her care and where she should live. The court was asked to make a decision on whether it was in SF’s best interests to remain in her current placement (X) in the Northeast of England where she was ‘flourishing’, or whether she should be moved to a new placement (Y), nearer to her family in the Northeast of Scotland.

The full background to the case is at paragraphs 10 to 14 and details her specific needs and current presentation at paragraphs 15 to 20.

The court considered that this was a finely balanced case where it was identified that there was no outcome which was obviously in SF’s best interests. As well as the advantages and disadvantages of each placement being considered, including any risk associated with transition to a new placement, the significant factors relevant to SF’s best interests were identified as:

• SF being from Scotland, her family living in Scotland and SF identifying as being Scottish.
• SF’s contact with her family being important. It was noted that she would have more contact with them if she were to live in Scotland.
• SF’s wishes and feelings.
• That SF was happy at her current placement.
• SF’s age and declining health.

The Official Solicitor’s position was that it is in SF’s best interests to remain in her current placement (X). This was strongly opposed by SF’s mother (EF) and her brother (GF).

This was Mr Justice Poole’s fourth judgment in relation to SF. It was previously held in Aberdeenshire Council v SF & Ors [2023] EWCOP 28 that SF was habitually resident in Scotland. In Aberdeenshire Council v SF (No.2) [2024] EWCOP 10 it was held that a Scottish Guardianship Order should not be recognised and enforced in this jurisdiction. In a third, ex tempore judgment, a finding was made that SF had become habitually resident in the jurisdiction of England and Wales.

Law:

Mr Justice Poole set out the relevant legal framework in Mental Capacity Act 2005 s1 and s4 for consideration of best interest decisions.

Reference was made to Re: A Covert Medication: Residence [2024] EWCA (Civ) 572 [6] whereby Jackson LJ acknowledged that “the statutory term ‘best interests’ has an ‘inherent optimism’, but there are cases where every option is problematic and even the best outcome is troubling.” The case of TW v. Z and others [2009] EWCOP 2525 was further referred to in relation to consideration of P’s wishes and feelings.

Also of relevance was the Court’s consideration of whether any violation of SF’s Article 8 ECHR rights would be necessary and proportionate.

Judgment:

It was considered by the Court that SF’s mother and brother has sought to influence SF to express her wishes and feelings to be in favour of a move to Scotland. It was noted that this had not been done maliciously and that they believed it to be in her best interests. This had resulted SF becoming conflicted between living at X, which she loves living at and where she has made considerable progress, and the prospect of no longer seeing her family.

Consideration was also given to the fact that SF does not deal with change well and any move would be likely to cause her distress.

The judge reminded himself that it was not the Court’s role to do what was best for SF’s mother (EF) and family and acknowledged that there would be a loss to SF whichever choice was made. The judge satisfied himself “that whilst this decision interferes with her right to a family life, it respects her right to a private life and that any interference with her right to a family life is proportionate and justified as being in her best interests.”

It was held that it was in SF’s best interests to remain living at X.

Mid Yorkshire Teaching NHS Trust v SC & Anor [2024] EWCOP 69 (T3) (01 November 2024)

This case relates to the best interests of a 37 year old pregnant woman (SC) who was detained under s.3 Mental Health Act 1983 and diagnosed as suffering from mania with psychotic symptoms. Owing to medical risks, the Trust applied for a planned Caesarean Section to be brought forward by 11 days. SC opposed the application.

The medical evidence for the application relating to the high-risk pregnancy is detailed at paragraph 23 of the judgment. The court was required to determine SC’s capacity to make the decision to have an elective Caesarean following concerns over SC’s presentation which included a belief that the nursing staff were sedating and sexually assaulting her, a belief that she was pregnant with quadruplets and that she was a midwife who could deliver her own baby. Also the court was required to consider whether SC’s psychiatric conditions would worsen if she had to undergo a Caesarean Section against her will and whether the procedure was in her best interests. Of relevance was that SC had previously undergone two emergency Caesarean Sections in 2007 and 2012.

Law:

In his judgment Mr Justice Cusworth set out the principles in the MCA 2005 when determining capacity and best interests.

The case of Aintree v James [2014] AC 591 [45] considers that all circumstances, both medical and non-medical should be taken into account. Noting that “…the purpose of the best interest test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail.”

Information relevant to the decision to consent (or refuse) a Caesarean Section is considered in North Bristol NHS Trust v R [2023] EWCOP 5 [57] whereby MacDonald J considered that “there are four questions for the court to answer when deciding if R has capacity. First, what is the “matter”, i.e. what is the decision that R has to make. Second, what is the information relevant to that decision. Third, is R unable to make a decision on the matter. Fourth, if R is unable to make a decision on the matter, is that inability caused by a disturbance in the functioning of her mind or brain.” Furthermore, in relation to the significance of any decision that the court makes it was noted at [84] that “…for the court to authorise a planned Caesarean Section is a very serious interference in a woman’s personal autonomy and Art 8 rights. As the Vice President noted in Guys and St Thomas NHS Foundation Trust & Anor v R, Caesarean Sections present particular challenges in circumstances where both the inviolability of a woman’s body and her right to take decisions relating to her unborn child are facets of her fundamental freedoms.”

In relation to a person not believing or accepting objectively verifiable medical consensus as to the consequences of not having medical treatment, King LJ said in the Court of Appeal in the case of Hemachandran v Thirumalesh [2024] EWCA Civ 896 [123] that “an absence of belief may but not inevitably will, on the facts of a particular case, lead a clinician or a court to conclude that the functional test in section 3(1) is not satisfied and that the person in question does not have the ability to make the decision in question.”

Judgment:

The Court considered SC’s preferred option of carrying the baby to term and the potential risks to the health of both SC and the baby, particularly if SC were to become distressed during any attempt at a natural birth. The Court also considered that planned Caesareans are generally safer that emergency Caesareans.

When considering the medical evidence in respect of capacity, the judge stated that it was clear that there was an impairment in the functioning of SC’s mind or brain. He was satisfied that SC lacked the capacity to decide whether or not her baby should be delivered pre-term by elective Caesarean.

It then followed to determine best interests and whether the risk to SC of a ‘serious deterioration in her mental health by reason of undergoing the Caesarean against her expressed wishes is outweighed by the very significant advantages to her physical safety, and that of her unborn child, with a planned Caesarean.’ In doing so the judge reminded himself that it is SC’s best interests alone that he was considering.

Taking all of this into account, it was determined that it was in SC’s best interests for the planned Caesarean to go ahead.

JC v Cornwall Council & Ors [2024] EWCOP 75 (T2) (23 October 2024)

This was an application concerning JC, aged 58, who has diagnoses of a mild learning disability, mild disorder of intellectual development, and cerebral palsy. They also have some autistic-like traits, but there is no final diagnosis of autism. JC may also have an acquired brain injury after being in a coma; although it was noted that the medical records are incomplete, and this is only based on what JC has said. JC had a challenging childhood which involved sexual abuse, and they had previously been an inpatient at a hospital.

It was agreed that JC does not have litigation capacity and does not have capacity to make decisions about where they should live, the care and support that they should receive, their contact with other people, their use of the internet and social media and the management of their property and affairs.

JC has expressed that they are lonely and seek companionship, and wish to engage in sexual activity. The issue to be determined was JC’s capacity to engage in sexual relations. Information relating to concerns over JC’s sexual behaviours and their understanding around consent is detailed at paragraphs 11 to 23.

JC had been given the opportunity to be assessed to assist their understanding of consent, but they were unwilling to engage fully in the interviews.

Law:

In the case of A Local Authority v JB [2021] UKSC 52 [84] the Supreme Court endorsed five elements that may be included in the information relevant to the decision to engage in relations:

1. The sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
2. The fact that the other person must have the capacity to consent to sexual activity and must in fact consent before and throughout the sexual activity;
3. The fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
4. That a reasonably foreseeable consequences of sexual intercourse between a man and a woman is that the woman will become pregnant;
5. That there are health risks involved particularly the acquisition of infection which can be reduced by the taking of precautions.

Judgment:

The judge noted that it may be that the five elements in JB are minimum requirements for some decisions and made reference to two other considerations he considered relevant. They are that engaging in sexual relations may result in:

• emotional distress or disappointment (of relevance to JC as they have expressed loneliness and made reference to wanting a family life);
• a negative reputation for promiscuity (noted that this was probably not a mainstream concern but was relevant to the protection of any person in JC’s position).

The judge considered that JC’s autistic-like traits and learning difficulty or impaired function prevent them from identifying non-verbal signals and prevents them from understanding information in non-verbal form. As a result, it was determined that JC lacks capacity to decide to engage in sexual relations.

Furthermore, it was considered that JC is unlikely to gain capacity unless there is a change in attitude and motivation in relation to assessment opportunities.

Sarah Hutchinson is a pupil barrister at Spire Barristers.