General Court of Protection Update

General Court of Protection Update

Since our last update the Court of Protection has been busy providing a number of interesting judgments. Here I will seek to summarise those which are, to my mind, the most choice.

Starting with Re RK (Capacity; Contact; Inherent Jurisdiction) [2023] EWCOP 37 which is a useful lesson on the limits of the inherent jurisdiction as a tool to compel a person, who has capacity to take action they resist – no matter how well intentioned the attempted use of that tool may be.

R is in her early 30s, is partially sighted, has a full-scale IQ of 60 and has Down’s Syndrome (described in the documents before the Court as a ‘significant cognitive impairment’). In the 18 months prior to this judgment, Cobb J had previously found that:

R lacks capacity to litigate and to manage her own property and financial affairs;
R has capacity to engage in sexual relations, to make the decision to remain at her current supported living accommodation (referred to as ‘Castle Hill’ with the service provider being referred to as ‘Signia’), and to make decisions about what support she needs on a day-to-day basis within an adequately supported environment.

At this hearing Cobb J was invited by R’s family to find that:

R lacks capacity to make decisions about contact with her family;
that R is susceptible to undue influence, and measures need to be put in place to protect her from this;
that R lacks capacity to revoke the LPA created in respect of property and affairs and health and welfare.

In the alternative, should R be found to have capacity, Cobb J was invited to make an order under the inherent jurisdiction with regard to supporting contact between R and her family.

This is a case with a long and fractured history. The breadth of this history is perhaps best exhibited by the fact that R’s family were keen for the Court to embark on an extensive fact-finding inquiry and in line with that had presented a 73-page schedule of proposed facts which they suggested required determination. As such, a summary for the purposes of this article must be, in comparison, brief.

R has lived at Castle Hill since 2015. Until 2020 this arrangement went smoothly and R’s family and Signia had a relatively good working relationship.

In or about late 2018 or early 2019 R formed a relationship with a male resident at Castle Hill referred to as SA. R was clear that SA made her happy, and Cobb J noted that she ‘recognised and responded to the emotional value this relationship brought her’. The family’s anguish at that time focused on whether R had capacity to engage in sexual relations with SA.

During the lockdown in 2020 the family wanted R to return home which she did, for a time, before moving back to Castle Hill. Much to her family’s dismay R could not be persuaded to return to the family home again.

From there the relationship between the family and Signia broke down entirely. In the documents before the Court numerous reasons and disputes were provided as the reason for that breakdown. The main concerns of R’s family were:

the quality of care provided by Signia;
that Signia were financially exploiting R; and
that Signia were having undue influence over R.

The family went as far as making allegations to the police prompting a police visit to R and SA.

From this time R ceased contact with her family, including leaving the family WhatsApp group chat and missing all family birthdays. Despite this Cobb J was satisfied that R fundamentally loves her family and wishes to be part of the family.

However, R had been steadfast in expressing her wish to not see her family. The origins of her anger, and belief that her family were controlling her, is not entirely clear. Cobb J suggested it might well lie in the time they applied pressure on her to lose weight.

At the hearing the experts could not agree on whether R lacked capacity. Dr Claudia Camden-Smith was clear that R lacked capacity, Dr Katherine McKay took the opposite view.

Dr McKay’s approach was challenged by the family but Cobb J found her assessment and methodology to be thorough and robust. In particular, she had met R on a number of previous occasions which gave her a great advantage. Her summary was as follows:

"She had a good understanding of the nature of the relationships with professionals, family members and others. She was aware that there were people involved in her life who were transient, and paid for their employment, whereas her family and her boyfriend were not. She was very clearly able to consider the positive and negative aspects of having contact with each person. [R] showed an ability to call to mind positive memories of being with her family, as opposed to having purely polarised negative views. Her ambivalence regarding her family was evident (as it had been in my previous report), and she reported feeling loved, and loving her family, and at times missing them, but also feeling controlled and criticised by them. She reported feeling ongoing negative feelings associated with the police being called in the past, which distressed both [R] and her boyfriend (regardless of the 'truth' about who called the police, [R] remains upset about this, in part due to the impact on her boyfriend) … Thus, [R] was assessed as having capacity to make decisions around contact. [R] herself was also able to make suggestions of things that would make her more amenable to having contact with her family, such as doing this on 'Zoom', although her priority in this area was for the cessation of legal proceedings". (Emphasis added by Cobb J).

R also provided a list of issues which, if corrected, would make it more likely for her to want to see her family. Amongst others this included ‘if they stopped court’ and ‘if they let her make her own decisions’. Cobb J gave this list some weight as he considered it goes some way to illustrating R’s ability to use or weigh relevant information.

Cobb J found that the family had not rebutted the presumption that R has capacity.

As to the family’s secondary position, declarations were sought under the inherent jurisdiction to facilitate a supportive framework which would work towards the restoration of contact. Cobb J was critical of the application in that the declarations requested were unhelpfully vague and failed to set out the legal basis on which they could be made. Nevertheless, Cobb J sought to consider them and in doing so took a detailed review of the relevant authorities.

In Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942 (Fam) Munby J said it would be unwise and inappropriate for him to define who might fall into the category of persons in respect of whom the inherent jurisdiction could properly apply. At [77] he said:

"…the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent."

Cobb J also considered the case of DL v A Local Authority & others [2012] EWCA Civ 253, where the Court of Appeal was keen to emphasise that the inherent jurisdiction is not ‘extensive and all-encompassing’ ([53]):

"…, or one which may threaten the autonomy of every adult in the country. It is … targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005". (Emphasis by underlining added).

[54] … The jurisdiction… is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (to adopt the list in paragraph 77 of Re SA): (a) Under constraint; or (b) Subject to coercion or undue influence; or (c) For some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent".

At [65] of that same judgment McFarlane LJ posed a rhetorical question in relation to someone with borderline lack of capacity:

"Where, on a strict mental health appraisal, such an individual does not lack capacity in the terms of the MCA 2005 and therefore falls outside the statutory scheme, but other factors, for example coercion and undue influence, may combine with his borderline capacity to remove his autonomy to make an important decision, why, one may ask, should that individual not be able to access the protection now afforded to adults whose mental capacity puts them on the other side of that borderline?"

Having already reviewed Munby J’s considerations of the meanings of ‘constraint’ and ‘coercion or undue influence’ at [78] of Re SA, Cobb J found that R was a vulnerable adult, who had a learning disability that made her vulnerable to undue influence. However, in this case Cobb J did not find that Signia had been guilty of undue influence or control or coercion of R. Signia had at times over stated and over promoted R’s autonomy but that did not amount to undue influence or control.

Cobb J concluded:

As I mentioned above, in Re SA, Munby J declined to define the categories of person for whom the inherent jurisdiction may be invoked, but it is nonetheless clear from his judgment (and from DL which followed) that those for whom it would apply are those who are under constraint, subject to coercion or undue influence or otherwise (for some other reason) deprived of the capacity to make a relevant decision, or disabled from making a free choice (see above). In my judgment, this has not been R's experience in her placement.
I reject the suggestion by the Applicant that there has been any deliberate attempt at, or actual, alienation of R against her family by members of the Signia staff; I further reject the allegation of 'environmental alienation' – i.e. Signia creating an environment or eco-system in which R is not able to speak positively about her family and/or where all conversation about her family is negative. In my judgment it is likely that, once R's family started making allegations about Signia and the care it was offering R, Signia staff will have found it difficult actively to encourage R to engage with her family; it may well be that R picked up on Signia's sense of unhappiness at being on the receiving end of a wide range of allegations.
It is clear that R has recently made free choices, and these are choices which have brought her into contact with her family – i.e., she agreed to take part in the Talking Project; she agreed to a meeting with her family in November (albeit that this did not happen), and agreed again to the café meeting on 9 December 2022.
I view with some sympathy the 'supportive framework' proposals advanced by the parties; indeed in the next section of the judgment I discuss them and actively encourage those with responsibility for R's care closely to consider them. But it is not 'necessary' for me to make orders in relation to them in order to liberate R to make decisions freely, nor is it 'proportionate' ([66] and [76] of DL) that I should. I am conscious of the need to guard against adopting an overly paternalistic attitude to a vulnerable adult who is the subject of the proceedings, and to make orders in (what McFarlane LJ referred to as) the "hinterland" of the MCA 2005 which undermine the very concepts of the MCA 2005 itself.

The Court went on to give a number of observations about R’s future care with Signia and indicated that the family’s supportive framework plan did have merit and might be successful outside of litigation.

As I said at the outset, this case is a good reminder of the limits of the inherent jurisdiction, but also a warning that one should be wary of confusing a decision those in their life cannot understand with being coerced or lacking capacity. As Cobb J noted at [153]:

“While the Court of Protection is accustomed to making important decisions about an individual's capacity to make decisions, and declarations about their best interests, it is not able to order or declare how people should think, or what they should do to get on better with each other. And that, in large part, is what needs to change in this case for the situation to move on.”

The Second case is Manchester University Hospital NHS Foundation Trust v JS & Others (Schedule 1A Mental Capacity Act 2005) [2023] EWCOP 33, an appeal of a decision of HHJ Burrows decision in [2023] EWCOP 12 before Theis J.

The matter itself was described by HHJ Burrows as ‘an unusual variation on a common theme’. JS is a 17-year-old young woman who has ASD, ADHD, learning disabilities and an attachment disorder. JS had suffereda particularly difficult few weeks with her mental health which included episodes of self-harm, and possible suicide attempts. She had been detained under s136 MHA 1983 on two occasions and s2 MHA 1983 once.

HHJ Burrows was tasked with deciding whether JS was eligible to be deprived of her liberty in the hospital under the MCA or if she was ineligible under Case E of Schedule 1A of the MCA. HHJ Burrows relied on the test as set out by Charles J in GJ v The Foundation Trust, a PCT & Secretary of State for Health [2009] EWHC 2972 (Fam). His conclusion was as follows:

‘102. My conclusion is that [JS] was ineligible to be deprived of her liberty in the Hospital under MCA. She was within the scope of the MHA under Case E. I have concluded for the reasons I have given that she could have been detained and treated under the MHA. I would go further and say that she should have been so detained and treated.’

At [48 - 49] Theis J agreed that the three key questions advanced by the Official Solicitor provide a useful structure to aid practitioners who have to navigate this issue. They are:

Is P a ‘mental health patient’ ?
Is P an ‘objecting’ mental health patient ?
Could P be detained under s3 MHA 1983?

In order for P to be ineligible to be deprived of their liberty under the MCA those questions must be answered thus:

Yes, as authorised by the relevant instrument;
Yes, by objecting to either being a mental health patient or objecting to being given some or all of the mental health treatment;
Yes

Hearing the appeal Theis J upheld the decision at first instance and approved both the test set out by Charles J, as well as Charles J’s analysis of the meaning of the word ‘could’. Charles J having decided that ‘could’ means the decision-maker should ask themselves whether in their view the criteria set by, or the grounds in, s2 or s3 MHA 1983 are met.

Theis J also suggested (at [116]) a practical step for cases where Schedule 1A Case E issues are likely to arise, would be:

“…for evidence to be provided to address that issue, utilising the GJ framework. That would not only assist the court and the parties, but also focus the minds on what needs to be addressed both in terms of any decisions to date under the MHA 1983, the basis of the application in the Court of Protection and addressing the key questions outlined above.”

At [117] Theis J endorsed the suggestions put forward by the Secretary of State for Health and Social Care to address situations in which a ‘stalemate’ has arisen, calling them a ‘useful roadmap for the parties to resolve any issues’. Those suggestions were included in the judgment at [118] and are as follows:

(1) The MHA and MCA decision-makers should arrange for discussions between the relevant professionals. They should be undertaken in what Ms Kelly describes as ‘the spirit of cooperation and appropriate urgency’. This will ensure the relevant professionals have reviewed and considered relevant evidence and if required further inquiries can be made.

(2) If these discussions do not result in a detention being authorised under the MCA the hospital has a number of choices:

(i) It can seek the person’s admission under the MHA 1983 to authorise the deprivation of liberty, including on a short term basis while it seeks to advance the person’s discharge;

(ii) It can seek for the person to be detained in an alternative setting, such as a care home, in which Case E has no application, with consideration being given to what can be put in place to support the person in the community under s 117 MHA 1983 and/or Care Act 2014 duties.

(iii) It can stop depriving the person of their liberty if it considers the person should not be detained under MHA 1983, even with the knowledge that the person will not be detained under the MCA 2005.

(iv) If the hospital does not consider that an application for assessment or treatment under MHA 1983 is warranted but does consider it is in the person’s best interests to be detained in hospital for treatment of a mental disorder, it should consider carefully its reasons for drawing this distinction. The hospital could apply to the Court of Protection for a determination of whether the person is eligible for detention under the MCA 2005.’

She goes on at [119] to say:

“I can see the sense in the suggestion of an application to the Court of Protection for a determination being a possible route to resolve these issues, but that is not said with any encouragement for such applications to be made unless it is necessary, and only after all other options have been explored. It will be a matter for each individual judge whether such an application is accepted, depending on the particular circumstances of the case.”

Theis J then pointed out the fact that for 16 and 17-year-olds there is a concurrent jurisdiction with the Court of Protection. At [123] she provided that the following may provide a guide in those difficult cases:

(1) In any application seeking authorisation to deprive the liberty of a 16 or 17 year old, the applicant should carefully consider whether the application should be made in the Court of Protection and, if not, why not.

(2) If a Schedule 1A Case E issue is likely to arise any evidence filed in support of an application should address that issue, so the relevant evidence is available for the court, thereby reducing any delay.

(3) In the event that the Court of Protection determines that P is ineligible the professionals should urgently liaise in the way outlined above.

The final case is Nottingham University Hospitals NHS Trust v JM & Anor [2023] EWCOP 38 which is a reminder that, as Hayden J puts it at [44] a person without capacity may have their own reality and it ‘requires to be respected. It is in this way that the autonomy of the incapacitous is respected’ and that ‘human dignity is predicated on a universal understanding that human beings possess a unique value which is intrinsic to the human condition’. It is also a reminder that sometimes where P is incapacitous, for the sake of their dignity and unique value, the decision may still be left to P.

JM is a 26-year-old man who, despite being diagnosed with autism at age 5, has received very little support for his mental health. His mother also suffers with her mental health and has been diagnosed with Schizophrenia. Hayden J declined to go into JM’s childhood but commented that it had been ‘characterised by trauma’.

There was a consensus that JM lacked capacity. The extent and nature of JM’s trauma had ‘exacerbated the situation’ and JM struggled to process his experience.

In January 2021 JM was diagnosed with chronic kidney disease. He requires, as a minimum, 4 3-hour sessions of haemodialysis per week. The clinical consensus was that without such treatment JM would die in 8 – 10 days. JM did not accept this diagnosis and neither did his mother.

The expert was persuaded that though they both held this irrational belief, they held it independently and JM’s belief system had not been ‘superimposed on him’.

On 19^th June 2023, the court made declarations that JM lacks capacity to:

Conduct the proceedings in question;
Make decisions about the medical treatment he receives for chronic kidney disease; and
Make decisions about whether to be accommodated in hospital or in a care home for the purpose of receiving treatment.

On 11^th August 2023 JM was found in bed covered in blood from his dialysis line which had been damaged and cut close to the junction point. There was very little doubt that it was JM who cut the line. Upon attendance from paramedics, he adamantly refused to have a replacement line inserted. JM would not accept subsequent attempts from the doctors and nursing staff who, ‘have made sensitive, creative and, if I may say so, very patient focused efforts to persuade JM to accept dialysis’.

The question for Hayden J was what steps it was in JM’s best interest to take, and it is worth considering this analysis as a whole:

The situation for JM has progressively deteriorated. I remind myself that in early 2023 when JM was clinically stable in hospital, the proceedings were concerned with finding a placement from which he could be encouraged to attend for dialysis three times per week. The situation is plainly now far graver. Restraining JM to reinsert a new dialysis line against his will might in and of itself be justifiable. However, JM's objection is not merely to the reinsertion of the line but to the life sustaining dialysis it would provide. It follows, inevitably, that the restraint required for the reinsertion would be a harbinger for repeated and extensive restraint on a weekly basis and indefinitely. JM's erratic compliance and distorted thinking, now over many months, effectively discounts him, I have been told, from eligibility for a donor organ. Such transplant would need compliance with a fairly rigorous regime of support which is very unlikely to be complied with. Moreover, that too may involve an extensive period of haemodialysis.
JM's belief system in respect of dialysis is so plainly distorted as to manifestly rebut the presumption of capacity, erected by the MCA 2005. However, even though his reasoning is unsound, JM's confidence and belief in his own judgment is well-established and as the chronology of the case has demonstrated, unmoveable. The fact that an individual's views may be misconceived does not, however, deprive him of the right to hold them. To approach this otherwise would particularly discriminate against the incapacitous, as well as more generally. JM's views on dialysis arise from the complex interplay of his psychological functioning and his life experiences. This is no doubt true for all of us but in JM's case, both are disordered. The nature and extent of JM's autism coupled with the extent of trauma that he has endured, serves to disable him from processing his thoughts and experience in an effective way. Nonetheless, JM's own reality, even though it greatly differs from ours, requires to be respected. It is in this way that the autonomy of the incapacitous is respected. That does not mean that their views prevail but it does mean that they must be afforded weight. As I have set out above, "human dignity is predicated on a universal understanding that human beings possess a unique value which is intrinsic to the human condition".
For the reasons which I have set out, I am clear that forced restraint either in the face of JM's expressed opposition or at a time when he is no longer able to resist, would compromise his dignity. By agreement and because Roberts J had previously met with JM on a number of occasions, I spoke with him on a private video link from which the public and lawyers were excluded. The solicitor for the Official Solicitor took a note. With outstanding efficiency, the note was available to the parties within 20 minutes of my concluding the meeting. Judges, I suspect, vary greatly in their approach to meeting with P. Video conferencing platforms have changed the landscape. It seemed to me, ultimately unthinkable, that I should not meet with JM and tell him the important decision I had made. I found him, as has everybody else involved in his care, to be a very pleasant young man. His conversation with me reinforced Dr C's assessment of him. As both Dr F and Dr C have said, JM does not want to die. When I told him of my decision and the fact that he would die, he told me without prompt or question that he did not want to. I formed the impression that he very much wanted to live. Ultimately, all I could do was tell him that the decision was his.

Hayden J closed his judgment with tributes to the doctors and nursing staff who he regarded as exceptional in the compassion they showed for JM. He also paid tribute to JM’s mother stating: ‘Though JM's mother struggles to understand the realities of JM's situation due to her own mental health difficulties, she has an impressive and, I sense, strongly maternal instinct that the use of restraint to compel dialysis would be inimical to his welfare. Those instincts, to my mind, are sound and also require to be factored in to this decision.’

Jack Barber

Pupil Barrister

Deans Court Chambers