UK: The Court Of Protection – Recent Cases And Comments On Procedure (Part 1)

Introduction

1. This paper, which draws upon work by Victoria Butler-Cole, Alex Ruck Keene and Alexis Hearnden, all of 39 Essex Street, falls in two parts:

1. an update on case-law from the past twelve months concerning best interests decisions on health and personal welfare applications in the Court of Protection. Following a relatively slow start, the Court of Protection has now developed an increasingly substantial body of case-law. However, there remains a significant problem with the dissemination of decisions, which means that important developments are, unfortunately, not always communicated as widely as they should be;¹
2. The article also identifies, and suggests ways to avoid, common pitfalls in bringing proceedings. It is predominantly written for the aid of local authorities, but it is hoped that the points made herein are of more general application.

Recent case-law

The court's powers

2. In Re F [2009] EWHC B30 (Fam) the court clarified that its powers under s.48 MCA 2005 to make interim orders and directions can be exercised even where there is insufficient evidence to rebut the presumption of capacity. The proper test in the first instance with whether there is evidence giving good cause for concern that the individual may lack capacity in some relevant regard. Once that has been raised as a serious possibility, the court can move to the second stage of deciding what action, if any, it is in the individual's best interests to take, before a final decision about capacity can be made. Thus, where there is evidence that an individual may lack capacity but further investigation is required, it may be appropriate to bring proceedings. For example, where the individual lives with his or her family and access to carry out a formal capacity assessment has been denied, where different conclusions about capacity have been reached by different assessors, or where evidence about capacity is of insufficient quality.

3. In the matter of LD (2009) considered the scope of the court's powers to determine a case summarily. While there was jurisdiction to determine a case summarily, this was a power that should be used with restraint, as an alternative to a hearing, or in an emergency where there was little or not apparent dispute likely. It was not appropriate where the result would be to sanction a deprivation of liberty, or where one of the parties was not present and had not been warned of the proposed course of action. The court also noted that the judge had wrongly appointed a local authority as personal welfare deputy without proper consideration of the statutory and procedural requirements for making such an order. Further consideration of the welfare deputy application is expected by the High Court before the summer.

4. In The London Borough of Enfield v SA & Ors [2010] EWHC 196 (Admin), Macfarlane J had to answer the following four questions:

1. Is hearsay evidence admissible in the Court of Protection?
2. If hearsay evidence is admissible, is hearsay evidence emanating from a witness who is, by reason of mental disability, not competent as a witness admissible in the Court of Protection?
3. Where the subject of Court of Protection proceedings has been interviewed by police in an 'Achieving Best Evidence' interview, are the fact of that interview and a copy of the DVD recording of it matters to be disclosed to the parties and to the Court?
4. Where police propose to interview a person who is the subject of pending incapacity/best interest proceedings in the Court of Protection, are the police and/or the applicant local authority under a duty to disclose the proposal to the court and parties in the Court of Protection and how is the issue of P's capacity to consent to the interview to be addressed?

5. The judgment is lengthy and repays careful consideration. In short terms, however, the answers that Macfarlane gave were as follows:

1. Yes, on a proper – and purposive – interpretation of the various statutory provisions governing the Court of Protection;
2. Yes, again on a similar interpretation. He made it clear, however, that admissibility was one thing and that the weight to be attached to any particular hearsay evidence from P would be a matter for specific evaluation in each individual case. Within that evaluation, he continued (at paragraph 36) the fact that the individual from whom the evidence originated is not a competent witness will no doubt be an important factor, just as it is, in a different context, when the family court has to evaluate what has been said by a very young child;
3. Yes. Macfarlane J was highly critical of the fact that this interview and the DVD of it had not been disclosed to the parties and the Court. He emphasised that, for the future, in such cases it would be justified for the Court to make an order for specific disclosure under Rule 133(3) of the Court of Protection Rules 2007 requiring all parties to give full and frank disclosure of all relevant material; in other words, to ensure that was effective equivalence in procedures between Court of Protection proceedings and family proceedings;
4. Yes. Macfarlane J held (at paragraph 46) that, in the absence of an 'absolutely pressing emergency' (in an extreme sense given the availability of a High Court judge every day of the year), where there are extant Court of Protection proceedings relating to an individual's capacity and best interests, any question of whether or not there should be an ABE interview must be raised with the court and be subject to direction from a judge. Where the substance of the interview may relate to allegations that another party to the proceedings (or someone closely connected to a party) has harmed the interviewee, then there will be good grounds for the matter being raised, at least initially, without notice to that party, but in every case notice should be given to the Official Solicitor or any other person acting as P's litigation friend. Macfarlane J commented (strictly obiter) that for his part, where there are pending proceedings, even if the local authority and litigation friend take the view that P has capacity to consent to such an interview, if the proposal if the interview is to take place without the knowledge of another party to the proceedings, it would nevertheless 'be wise if not necessary' for the court to be informed of the situation.

6. Finally, Macfarlane J made it clear that once findings of fact have been made following a hearing before a specific judge, the case becomes part heard and that the trial (including any subsequent best interest hearing) should not resume before a different judge.

7. It is also worth noting that the High Court will next month hear a case which has been agreed raises the following issues:

1. the principles to be applied in the "fact finding" process in the Court of Protection and to what extent the principles and jurisprudence on procedure and substance in the Family Division under the Children Act 1989 and the Adoption and Children Act 2002 are relevant and applicable to the Court of Protection under the Mental Capacity Act 2005;
2. the principles and procedures to be adopted in the Court of Protection (including any interrelation with principles and procedures in the Family Division) when considering questions of contact between P and (1) a minor sibling and (2) an incapacitated adult family member.

8. In A v Independent News and Media Limited [2010] EWCA Civ 343, the Court of Appeal considered the Court of Protection Rules as to whether hearings should be held in private or in public. The case concerned a severely disabled adult, A, who was, in spite of his disabilities, a musical prodigy. The Official Solicitor contended that the proceedings, which involved applications for the appointment of welfare and financial deputies, should be heard in private, in accordance with the general rule. The Defendants sought access to the proceedings in order that they could then apply for such information as they thought appropriate to be made public, arguing that much of A's personal life was already in the public domain. The High Court made an order the effect of which was to enable designated representatives of the media to attend the hearing in the Court of Protection, and thereafter to apply to the judge for his authorisation to enable them to publish information disclosed in the proceedings.

9. The Court of Appeal upheld the decision of the High Court, noting that it would not be appropriate to accede to the Official Solicitor's suggestion that instead of allowing access by the media, parts of the Court of Protection's judgment could be published, since it would be wrong for a judge to tailor his judgment to the needs or concerns of the media. Further, the Court of Appeal considered that it was valuable for the public to know about what happens in the Court of Protection, where most hearings will be held in private, and that it was difficult to think of a more appropriate case to fulfil that function, in view of the public's existing familiarity with A's story.

10. City of Westminster v FS [2009] COP 11685959 represents a successful appeal against a decision (of District Judge Jackson in Archway) not to accede to an application made by the OS to instruct an independent social worker. Paragraphs 14 to 16 of the judgment of HHJ Horowitz QC are perhaps the most relevant in terms of discerning principles of general application. We are still, however, awaiting a clear general statement of principle as to the circumstances under which the appointment of independent experts is appropriate, and it is therefore likely that practice will continue to be varied across the country.

The role of the individual's own wishes

11. In Re P [2009] EWHC 163 (Ch), the court noted that deciding what was in a person's best interests was not the same as enquiring what the person would have decided if he had had capacity (the 'substituted judgment' test). The person's wishes were to be given weight, but they were only one part of the equation. The requirement under s.1(6) of the MCA 2005 that before an act was done, consideration must be given to whether the same outcome could be as effectively achieved in a less restrictive way, was not determinative.

12. In DCC v EH (2009), a case in which the local authority sought the court's authorisation to move an elderly woman with dementia into a care home against her wishes, the court concluded that the move should take place, notwithstanding expert evidence that she should continue to be cared for at home. In this case, the woman's wishes could not be given considerable weight because of her failure to understand the seriousness of her illness and the risks she faced in living alone in her own home.

The need to consult

13. In Re Allen (2009, COP 21/7/09), the Senior Judge of the Court of Protection considered the scope of the duty to consult under s.4(7)(b) of the MCA 2005 in relation to attorneys. The judge concluded that where 'any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P's best interests, and it would be neither practicable nor appropriate to embark on that process in the first place.'

Deprivation of liberty

14. The new Schedule 1A to the MCA 2005 which came into force in April 2009 introduced system of authorisations for deprivations of liberty (DOLS) which should prevent local authorities from breaching the Article 5 rights of individuals without capacity. In DCC v KH (2009), the Court of Protection confirmed that a standard authorisation would be sufficient to return an individual from contact sessions to his place of residence, where doing so entailed a deprivation of liberty. No anticipatory declaration about the use of force was appropriate because restraint was permitted under s.5 and s.6 MCA 2005.

15. In In the matter of BJ [2009] EWHC 3310 (Fam) the court held that where long-term reviews by the court of deprivations of liberty are required, they may take the form of a review on the papers without an oral hearing, although a party could request an oral hearing where appropriate.

16. In G v E and others [2010] EWHC 621 (Fam) the High Court (Baker J) was asked to determine whether E had been unlawfully deprived of his liberty by the local authority, who had placed him in respite care in response to safeguarding concerns. It was agreed that there was a deprivation of liberty, since there was complete control over his care, his movements, his assessments, treatment, social contacts and residence. The local authority had failed to authorise the deprivation of liberty under DOLS and the deprivation of liberty was therefore unlawful. Further, the court found that since E's carer had not been involved in the decision to move him into emergency respite provision, since there had been no adequate consideration given to E's family life, and since E's contact with his carer had been impeded for several months, there had been a grave and serious breach of E's rights under Article 8 ECHR.

17. Various other issues fell to be determined by the court, including whether or not the court could consider making an order sanctioning a deprivation of liberty unless it was satisfied that compulsory confinement was warranted. It held that there is no threshold condition that the court may not entertain an application for an order under s.16 the MCA that would have the effect of depriving a person of his liberty unless satisfied that his condition warrants compulsory confinement. The proposed deprivation of liberty would fall to be assessed as part of the best interests analysis.

18. The case also raised interesting questions about the validity of E's tenancy agreement given E's lack of capacity and the fact that the agreement was signed on E's behalf by the care provider. The issues arising from this, and from the possibility that given there was no valid tenancy agreement, the care was in fact being provided in a care home and that E was unlawfully in receipt of housing benefit, were not determined but clearly arise in many best interests cases and will no doubt in due course come before the courts to be decided, in this case (which continues) or in others. Finally, the case is of interest because the court decided the question of interim residence against the expert evidence available to it, and against the submissions of the Official Solicitor.

19. In DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam), the NHS Foundation Trust sought (and obtained) a declaration that treatment for cancer was in the best interests of a learning disabled woman, in circumstances where she had both failed and refused to attend hospital for treatment, and where it might well be necessary to sedate her to convey her to hospital because of her phobia of hospital and needles. It is somewhat unclear why this judgment was published as, whilst important on its own facts, it does not represent an evolution of the principles now well established in medical treatment cases. However, in one significant regard, the judgment is, however, unintentionally but crucially misleading when read in isolation from the order which was, in fact, made in the proceedings. At paragraph 20, the President of the Family Division finds that it will be necessary to detain PS in hospital during the period of post-operative recovery. He then records the Official Solicitor ("after mature consideration") coming to the view (with which he agreed) that it was not necessary to invoke the DoLS provisions under Schedule 1 of the MCA. The sentence which then immediately follows ("[i]f it is in PS's interests (as it plainly is) to have the opeartion, it is plainly in her interests to recover appropriately from it,") could be read as suggesting that the OS -and then the President - took the view that it was not necessary to invoke the DoLS safeguards because any deprivation of PS's liberty would be in her best interests. Indeed, this is how it is summarised on Lawtel. Put this baldly, this would have been a somewhat startling proposition. Although it has some support (in the Strasbourg case of HM v Switzerland (2002) 38 EHRR 314 and in – in the context of control orders – in Baroness Hale's speech the House of Lords decision in Home Secretary v JJ [2007] UKHL 45 and in Austin v Commissioner of the Police for the Metropolis [2009] 1 AC 564), the conflation of the fact of a deprivation and of its purpose is a troubling one (although see further Re A (child) and Re C (adult) discussed further below). However, we can confirm that neither the OS intended to suggest nor the President intended to find any such thing. Rather, the "mature consideration" of the Official Solicitor had led him to conclude that - in the particular, time-limited circumstances of the case, the deprivation of PS's liberty could be authorised by the Court, rather than by way of the use of the NHS Trust of the provisions of Schedule 1.

20. Judgment has very recently been handed down in Re A (child) and Re C (adult) [2010] EWHC 978 (Fam); two cases heard together last year by Munby J (as he then was), which concerned deprivation of liberty. In both cases, the individuals concerned suffered from Smith Magenis syndrome. The condition is genetic and is characterised by learning disability, behavioural problems and disturbed sleep patterns. A and C each lived with their respective families and were cared for at home. Both were locked in their bedrooms at night to prevent them from wandering around the house and injuring themselves. There was no practical alternative to locking the bedroom doors, since having carers present would be likely to exacerbate the disturbed sleep. Neither A nor C was concerned about having the bedroom door locked at night.

21. The case is of interest on three points: the application of Article 5, the question of what amounts to a deprivation of liberty, and guidance for local authorities when dealing with incapacitated adults.

1. Article 5. The court considered in some detail how Article 5 is engaged where the person responsible for the alleged deprivation of liberty is a private person not a public authority. The court found, relying on Strasbourg caselaw, that the State owes positive obligations under Article 5 to protect individuals from arbitrary interferences with their right to liberty, 'whether by state agents or by private individuals'. Local authorities must therefore take reasonable steps to prevent (or seek court authorisation for) a deprivation of liberty which they are aware of, or which they ought to be aware of. This includes investigating whether there is a deprivation of liberty, monitoring the situation if appropriate, and taking steps to end the deprivation of liberty (for example by providing additional support services) or, if that is not possible, bringing the matter to court. However, on the facts of the case, the local authorities were not so directly involved with the alleged deprivation of liberty for Article 5 to be engaged. The local authorities had carried out assessments and had prepared care plans which involved limited domiciliary care and the provision of respite, but they were not directly or substantially involved in providing care, in particular at night time. These two elements of the judgment are, to the authors of this case summary, confusing. If the local authorities have a duty to investigate and to refer the matter to court because of their positive obligations under Article 5, then it surely follows that if they do not, they may be in breach of Article 5. Yet, the submission that the local authority 'would be in breach of its positive obligations under the Convention if it failed either to prevent the deprivation of liberty or to seek the court's sanction to render it lawful' is rejected. The explanation must be that the Article 5 positive duty to investigate and refer the matter to court only applies where the local authority has direct responsibility for the alleged deprivation of liberty – it is not that Article 5 is engaged in relation to the acts of any private persons, only those private persons over whom the local authority has sufficient control. It is not clear to the authors how, for example, this translates to the common situation in which an individual resides in a supported living placement where care is funded by a local authority but day-to-day decisions and the actual provision of care are carried out by a private body.
2. Deprivation of liberty. One might have thought that being locked in a room for 10 to 12 hours a day would obviously amount to a deprivation of liberty. But on the facts of the cases, it was held there was no deprivation of liberty. The court relied on the decision in Re MIG and MEG [2010] EWHC 785 (Fam), a transcript of which is not yet available, and in respect of which permission to appeal to the Court of Appeal has been sought. Critically, the purpose of the restrictions imposed was found to be relevant in ascertaining whether there is a deprivation of liberty, though it is not determinative and should not be over-emphasised. Thus, in circumstances where A and C were being locked in their bedrooms for their own safety only at night time when they would otherwise have been asleep but for the effects of their condition, were checked on by their families, and were happy with their care, there was no deprivation of liberty, only a restriction of liberty. The fact that they had no say over where they lived and how they were cared for, was outweighed by these considerations.
3. Guidance for local authorities. Munby J took the opportunity in this case to give some guidance to local authorities as to the exercise of their powers in respect of incapacitated adults. He was scathing about a local authority 'mindset' that treated individuals as being under the control of the local authority and as having to comply with its decisions as to their care. He stated that where objections are made or where an absence of objection does not equate to consent, the local authority must seek the assistance of the court 'before it embarks upon any attempt to regulate, control, compel, restrain, confine or coerce a vulnerable adult.' Further, applications should generally only be made without notice 'in the kind of circumstances which in the case of a child would justify a without notice application for an emergency protection order' (genuine emergency or other great urgency and where there is compelling evidence that if notice is given, the individual's welfare will be seriously compromised). Finally, the judge noted that although under s.47 of the NAA 1948 an order can be sought from a magistrates' court for the removal of a person from his residence for the purpose of receiving care and attention, the Law Commission has described this power as 'regarded largely as obsolete' and 'not necessarily compatible with Article 5'.

MCA 2005/Mental Health Act 1983

22. Two recent cases have considered the interrelationship between the MCA 2005 and the Mental Health Act 1983:

W Primary Care Trust v TB & Ors [2009] EWHC 1737

1. in this case, the applicant PCT sought a declaration that TB was eligible to be deprived of her liberty at a particular establishment pursuant to an authority under the Mental Capacity Act 2005 s.4A. The care home was registered under the Care Standards Act 2000. The court was required to determine whether, assuming residential treatment at the care home was in TB's best interests as defined by the 2005 Act, depriving her of her liberty in order to provide that treatment could be authorised under s.16 or Sch.1A of the 2005 Act;
2. Roderick Wood J found that s.16A of the 2005 Act circumscribed the powers of the court to make a welfare order which incorporated an element of deprivation of liberty. If, by operation of s.16A, TB was ineligible to be deprived of her liberty under the Act, then the only option for detaining her would be under the 1983 Act. However, if that route were taken, she could not be detained at the care home because it did not accept patients under the 1983 Act. It was accepted that it would not be helpful to detain TB under the 1983 Act because the specialist treatment she required would not be available in mainstream psychiatric services. TB fell within "Case E" under Sch.1A para.2 of the 2005 Act. Therefore, she would be ineligible to be deprived of her liberty if the conditions in Sch.1A para.5 were met, namely that the relevant instrument authorised her to be a "mental health patient" and she objected to being a mental health patient.
3. the judge went on to find that, as the care home was not registered as an independent hospital, nor was it part of the NHS, it did not fall within the definition of a "health service hospital" in the relevant provisions of the 1983 Act. Therefore, the declaration sought by the PCT did not constitute a declaration or order seeking to have TB "accommodated in a hospital" as thus defined. Accordingly, she was not on that basis a "mental health patient" as defined under Sch.1A para.16 of the 2005 Act. Her detention at the care home fell outwith the categories of ineligibility under Sch.1A para.2. Therefore, an order under the Act could be made if there was sufficient evidence to establish her best interests construed in the light of all the circumstances.

1. the particular question posed by this case was how to determine whether someone was eligible to be deprived of their liberty under the MCA 2005 in a hospital, when they were potentially treatable under section (under the MHA 1983).
2. The judge stated that the MHA 1983 is the primary legislation, in the sense that if treatment is required and can be given under the MHA 1983, it is not for a professional to decide that it would be preferable to proceed under the MCA 2005. The relevant question is therefore whether the person would be detained in hospital for treatment for his mental disorder if it were not for the need for treatment of his physical disorder. If the answer is yes, then the person falls within the scope of the MHA 1983, and the decision-maker must then ascertain whether objects to the proposed deprivation of liberty. If he does, he will be ineligible to be deprived of his liberty under the MCA 2005. If the answer is no, the person is only being detained for treatment of his physical disorder not his mental disorder, then he is not a 'mental health patient' for the purposes of the MCA 2005 and so the ineligibility rules in Schedule A1 paragraph 5 do not apply to him.

23. As demonstrated by both of these cases, the relationship between the MHA 1983 and the MCA 2005 is complex, and the provisions of Schedule A1 to the MCA 2005 somewhat difficult to apply. Local authorities will need to be particularly careful about issuing authorisations under DOLS in respect of patients who may meet the criteria for sectioning under the MHA 1983.

Consent to sexual relations

24. In Re C [2009] UKHL 42 was a criminal appeal concerning the correct interpretation of part of the Sexual Offences Act 2003. In the course of considering the criminal test for capacity to consent to sexual relations, the House of Lords also considered the judgment of Munby J (as he then was) in X City Council v MB [2006] EWHC 168 (Fam) which dealt with the common law test for capacity to consent to sexual relations. Baroness Hale said that she was 'far from sure' that the comments expressed by Munby J in MB were correct, but the issue was not decided as the question of the correct common law test did not fall to be decided. Her comments however leave some doubt as to the correct approach for assessing capacity to consent to sexual relations under the MCA 2005.

25. Munby J had concluded in MB that the threshold for capacity to consent to sexual relations was very low – merely the ability to understand the nature of the act itself. Baroness Hale suggested that this approach failed to recognise properly the need for a person to be able to weigh up issues involved in making a decision. She gave the example of an individual who had delusions she was being commanded by God to have sexual intercourse: the individual might well understand the act, but not be deemed to have capacity to consent to it, in that she was not making an autonomous choice. Baroness Hale said that whereas Munby J had found that capacity to consent to sexual relations was not situation specific," in fact, it is difficult to think of an activity which is more person and situation specific than sexual relations" (para 27).

26. The implications of the judgment for local authorities may be important. In cases in which vulnerable adults whose capacity is in question are involved or may be involved in sexual relationships, it will be very important that those assessing capacity are familiar with both MB and R v C. Pending further clarification by the courts as to the appropriate test under the MCA,² it may be prudent to apply the more stringent test suggested by R v C than to rely on the very low threshold set in MB.

Capacity to consent to contraception

27. In A Local Authority v Mrs A and Mr A [2010] EWHC 1549, Bodey J considered the test for capacity to consent to contraception. The case involved a married couple, both with learning disabilities. Mrs A had previously had two babies, not with Mr A, both of whom had been taken into care at a very young age. Mr A was keen to have a child with Mrs A. There was evidence of domestic violence and evidence that Mr A was very controlling of Mrs A, and sought to prevent her having contact with social services and from seeking contraception.

28. The local authority submitted that the test for capacity to consent to contraception involved understanding and weighing the reasonably foreseeable consequences of not using contraception, and that this extended to understanding what would be involved in having and caring for a child. The Official Solicitor submitted that this set the bar too high. The judge agreed, primarily on public policy grounds. It was 'unrealistic to require consideration of a woman's ability to foresee the realities of parenthood, or to expect her to be able to envisage the fact-specific demands of caring for a particular child not yet conceived (let alone born) with unpredictable levels of third party support' and for such consideration to take place during a GP appointment discussing contraception. Further, the local authority's position risked heading towards social engineering. The judge set out the 'immediate medical issues' that a woman would need to understand and weigh up in order to demonstrate capacity to consent to contraception:

1. the reason for contraception and what it does;
2. the types available and how each is used;
3. the advantages and disadvantages of each type;
4. the possible side-effects and how they can be dealt with;
5. how easily each type can be changed;
6. the generally accepted effectiveness of each

29. On the facts of the case, Bodey J held that Mrs A did have capacity to understand these medical issues, but was unable to weigh them because of the undue influence placed on her by Mr A. This finding was to some extent academic, since the court was unable to make any order as to best interests: if it declared that contraception was in Mrs A's best interests, either she would agree (in which case the declaration would not be necessary), or she would not (in which case there was no question of her being forcibly transported to hospital against her will, sedated, and provided with contraception and so the declaration would serve no purpose).

Use of the inherent jurisdiction for vulnerable adults

30. In Re SA [2005] EWHC 2942 (Fam), the High Court said that in certain circumstances, adults without capacity could nevertheless be the subject of best interests decisions under the inherent jurisdiction. In SA, Munby J set out the nature of the court's jurisdiction as follows:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.