Court of Protection case update: October 2024
Lauren Gardner and Eleanor Suthern round up the latest Court of Protection cases of interest to practitioners, including an important ruling on representation during review periods.
P v Manchester City Council and others [2024] EWCOP 43
Facts:
This case concerned P, a 27-year-old man who was represented by the Official Solicitor. P lived with his mother, PK, who was also a party to the proceedings.
The local authority, supported by the ICB, applied for P’s health and social care records (including capacity assessments and care plans) to be withheld from PK. The statutory bodies expressed concern that if P’s information was disclosed to PK against P’s wishes, P would disengage further and would be at risk of harm.
PK opposed this application, as did the Official Solicitor on P’s behalf, the latter arguing that P had already disengaged, and that PK required access to information in order to be able to support her son.
Law:
District Judge Matharu set out the relevant law and guidance from paragraph 10 onwards. She noted that the decision to withhold material from a party was a case management, as opposed to a best interests, decision, and that the test was one of necessity. District Judge Matharu further referred to the Guidance of Mr Justice Hayden dated February 2023.
Judgment:
District Judge Matharu held that “there is not a shred of evidence” that disclosure would put P at risk of harm from PK, and that the evidence relied upon by the statutory bodies was historic. Further, District Judge Matharu held that non-disclosure would prejudice both PK and P, and that the statutory bodies’ proposals were “unworkable”. She therefore refused the application for closed material.
Further, District Judge Matharu held that the statutory bodies had failed to give the application sufficient consideration or scrutiny, which was vague and insufficiently put. In the circumstances, the statutory bodies were ordered to pay the costs of PK and of the Official Solicitor on behalf of P.
Re PG (Serious Medical Treatment) [2024] EWCOP 49
Facts:
This case concerned PG, a 57-year-old woman with a history of severe mental illness, and of multiple admissions to psychiatric hospitals under the Mental Health Act 1983 (“MHA”). At the time of this application, PG remained subject to section 3 MHA, and was on leave under section 17 MHA to a single-sex supported living placement.
PG’s presentation was dominated by persecutory beliefs and a persistent fear of any form of medical investigation. PG was periodically fixated on her history of an alleged rape, as a result of which she was particularly resistant to even mildly invasive gynaecological investigation.
Over the year leading up to this application, PG had displayed symptoms requiring investigation and possible treatment for gynaecological cancer. However, PG was resistant to such investigations, and the professionals involved in PG’s care and treatment were concerned about the impact of such investigations on PG’s fragile mental health, and the potential knock-on effects for her current community placement.
As such, this application was brought jointly by two NHS Trusts (the treating hospital for PG’s gynaecological issues, and the treating mental health trust) for determination of whether it was in PG’s best interests for a clinical investigation to be undertaken, and if so, whether it was in PG’s best interests to undertake any treatment identified as required by such investigation.
Law:
Cobb J helpfully sets out the legal framework for consideration of best interests at paragraphs 35 – 39 of the judgment, and highlights key aspects of Baroness Hale’s guidance in Aintree v James [2013] UKSC 67, including:
- The starting point is a strong presumption that it is in a person’s best interests to stay alive;
- Nevertheless … this is not an absolute. There are cases where it will not be in a patient’s best interests to receive life-sustaining treatment.
- Every patient, and every case, is different and must be decided on its own facts.
- Decision-makers must look at … welfare in the widest sense, not just medical but social and psychological.
- They must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be.
Cobb J then poses a number of questions with respect to PG’s best interests, including whether PG could be assisted to cope with investigations and / or treatment, whether it would be in her best interests to be subject to investigation if she would never be compliant with treatment, and whether it would be in her best interests to do nothing.
Judgment:
Cobb J noted that “PG’s psychiatric and gynaecological conditions are plainly complex and severe; the intersection between the two is fraught with difficulty, and identifying PG’s best interests has been particularly complex”. Cobb J went on to conclude that it was not in PG’s best interests to undergo investigation of her gynaecological symptoms, or to undergo treatment by way of surgery, radiotherapy or chemotherapy. It was in her best interests to receive such palliative care as her clinicians considered to be in her best interests at the time.
Further, Cobb J emphasised that where cancer is a suspected pathology in respect of a person who lacks or may lack capacity to make treatment decisions, the relevant NHS Trust should not hesitate to bring the matter before the court in a timely manner.
Re PQ (Court Authorised DOL: Representation During Review Period) [2024] EWCOP 41
Facts:
The case concerned PQ, a 23-year-old woman, PQ with a Learning Disability which led to her being vulnerable to sexual exploitation. PQ was the subject of long-running Court of Protection proceedings, culminating in a final order in January 2024 which authorised the deprivation of PQ’s liberty in a community-based setting, with 14 hours of 1:1 support per day.
The outstanding issue for determination by a Tier 3 Court of Protection judge was the arrangements which should be put in place for the review of the deprivation of PQ’s liberty during the “review period” between the final order and the next planned review, in circumstances where there was no family member willing and able to act as a rule 1.2 representative, and where the local authority would not fund a professional representative. In particular, the key questions for the court were:
- Whether PQ’s continued participation during the review period requires her to have some form of representation, whether by a Litigation Friend, an ALR, or a r1.2 representative, in order for there to be compliance with ECHR Art 5.
- If so, what form of participation should the court require given the options available; and
- If the LAA refused to fund PQ’s representation during the review period, whether by a Litigation Friend or an ALR, what steps should the Court then take?
The local authority argued that the Strasbourg jurisprudence did not establish that a representative had to be appointed in all cases in order to comply with Article 5 ECHR; instead, a balance had to be struck in each case. The Official Solicitor on behalf of PQ submitted that in the present case, it was necessary to have a representative to ensure that PQ’s rights were “practical and effective”. The Official Solicitor did not seek to extend its submissions to community DOL cases more generally.
Law:
Poole J sets out the framework for a lawful deprivation of liberty in detail, from paragraph 6 onwards, from consideration of Article 5 ECHR and the associated Strasbourg jurisprudence, to the domestic case law (including Re NRA [2015] EWCOP 59, Re JM [2016] EWCOP 15 and Re KT [2018] EWCOP 1).
Poole J noted Charles J’s conclusion in Re JM, that:
“without some assistance from someone on the ground who considers the care package through P’s eyes and so provides the independent evidence to the COP that a family member or friend can provide … the procedure will not provide an independent check that meets the minimum procedural safeguards required by Article 5 and the common law.”
Further, Poole J noted that, Charles J’s “Herculean efforts to find a practical solution” that would comply with Article 5 ECHR, had not yet borne fruit, and that the solution of using COP Visitors had not taken hold.
Judgment:
Poole J found that, in the circumstances of PQ’s case, it was necessary for her to have a representative throughout the review period.
Poole J concluded that the court could not rely on the local authority to monitor and review the care arrangements and PQ’s deprivation of liberty, and to restore the matter to Court as appropriate. This would not provide independent, proactive oversight, and would rely on the goodwill of the detaining authority to support PQ’s access to the court. Further, Poole J did not consider it appropriate for the Court to take on the role of r1.2 representative (for example, by listing more frequent review hearings). Nor did he consider it appropriate to decline to authorise the deprivation of liberty until a r.1.2 representative was in place.
In the circumstances, Poole J noted that there were only two practical options: for PQ to remain a party to the proceedings, with the Official Solicitor as litigation friend; or, for the Official Solicitor to be discharged and for an ALR to be appointed (whether with PQ as a party or not).
Poole J directed that PQ should remain as a party, and that the Official Solicitor should remain as litigation friend. Poole J made reference to the fact that continued legal aid funding depended on an oral hearing being listed or being likely to be listed. Nonetheless, he declined to list what could be an unnecessary oral hearing in 12 months’ time, “simply as a device to secure LAA funding”. Instead, Poole J made directions for the matter to be relisted for further consideration in the event that LAA funding was withdrawn.
Lauren Gardner and Eleanor Suthern are barristers at Spire Barristers.
