To the third edition of our COP newsletter for 2021.

Our round up this quarter showcases a variety of issues that have come before the court and the one particular case that stands out for me at least, is the case of Miss K in which the court – once again - severely criticised the applicant trusts for not making their application for Miss K's obstetric care in a timely fashion.

Guidance where a pregnant woman who lacks, or may lack, the capacity to make decisions about her obstetric care in certain circumstances was first provided by Keehan J in NHS Trust & Ors -v- FG in 2014. It is extremely regrettable, seven years on, to see that the courts continue to criticise NHS bodies for late applications with Lieven J in the Miss K case going as far as to say that judicial criticism of delay felt like "a waste of breath" rendering the Official Solicitor's role effectively a "tick box exercise". A salient reminder for NHS bodies I think, to go back to the drawing board, pull out Keehan J's guidance and make early contact with their legal teams so that informed decisions can be made first, as to the need for an application and second, the timing of any application.

For anyone who may have missed these, two reminders. First, that on 9 July 2021, two new practice notes were issued outlining how to work with the Official Solicitor in Court of Protection cases (welfare and property and affairs). These can be found on the gov.uk website. Second, that the Guidance on the MCA 2005 and DoLS during the Covid-19 pandemic was withdrawn on 10 August 2021 and that the urgent authorisation form (form 1B) in Annex B is no longer to be used, with form 1 instead to be used for all requests.

My thanks to all the contributors to this edition of the newsletter and if there is any burning topic or issue you would like to see covered in the next edition, do please let us know.

Kiran Bhogal
Partner and Head of Health Advisory London

Download: Court of Protection newsletter - September 2021

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