Court of Protection

Interesting cases and articles from Trainee Solicitor, Laura Twist

21 December 2015

Court of Protection scheme to hold more cases in public

The Court of Protection is to run a new pilot scheme allowing journalists and members of the public to have greater access to the issues decided within the Court. Currently, the majority of the hearings are heard in private to protect the identity of sick and vulnerable individuals. The pilot scheme is intended to provide ‘greater transparency’ whilst continuing to protect the vulnerable individuals by maintaining their anonymity.

It is hoped that the scheme will promote a wider understanding of the type of work that the Court undertakes.

http://www.bbc.co.uk/news/uk-34868246

Re HNL [2015] EWCOP 77

The case relates to an application regarding the payment of a gratuitous care allowance. The proceedings related to Helen, a 53 year old woman, who suffered from intractable epilepsy coupled with profound memory loss, impaired executive functioning and intermittent post-ictal psychosis following an operation to try to relieve her epilepsy. Following a successful claim for clinical negligence, she received a substantial award and her brother, Adrian, acts as her deputy for property and affairs. In 2006, Adrian gave up his job to take on the role of full time carer for his sister and was authorised to receive £23,000 per annum in remuneration for this role. Senior Judge Lush determined that Adrian was an “exemplary deputy who has consistently acted in good faith and in his sister's best interests” and that his role was largely unchanged from that initial authorisation. SJ Lush stated that he was “satisfied that it is in Helen's best interests for Adrian to continue to provide care and case management services to her and that until further order he should be paid an allowance of £23,000 a year, tax-free”.

The OPG has suggested that gratuitous care payments should be reviewed regularly. SJ Lush commented that this was not a cheap process and regular reviews could have a significant knock on effect on awards sought by claimants in respect of Court of Protection costs in future claims for damages for personal injury and clinical negligence. However he noted the following in this case:

“In Helen's case, because of the wide gulf between the commercial value of the services Adrian is providing and the actual payment he is receiving, I consider that it would be disproportionate to go through this process too frequently, and I suggest that Adrian's gratuitous care allowance should be formally reviewed again in 2022 or earlier, if necessary, because of a change in his or Helen's circumstances.”

http://www.bailii.org/ew/cases/EWCOP/2015/77.html

The “socialite” who rejected life-saving treatment

The lady at the centre of this case (‘C’) had suffered kidney failure as a result of a suicide attempt. She had irreversible damage to her kidneys and if she ceased to have dialysis, she would have less than two weeks to live. C had attempted to take her own life to avoid disability and dependence on others and her failed attempt had sadly led to this. C did not want any further dialysis treatments and this is where the application to the Court of Protection arose.

King’s College Hospital NHS Foundation Trust applied to the Court to be allowed to physically or chemically restrain C from leaving the hospital on the grounds that her refusal to have such treatment disclosed a state of mind that rendered her incapable under the Mental Capacity Act.

It is well established that a decision not to have lifesaving treatment may be considered an unwise decision but it is not of itself evidence of a lack of capacity to take that decision. C’s family believed that she did have capacity to decide whether or not to refuse treatment. They reported that the rationale expressed by C for refusing treatment was that she believed that she may need dialysis for the rest of her life and saw a bleak future without the material wealth she had been used to, and that getting old scared her both in terms of illness and appearance. Whilst many may consider this attitude to be reprehensible, it is not evidence of mental incapacity. The Court ultimately ruled that she had the right and capacity to refuse the lifesaving treatment.

For the full article and link to the judgment: http://ukhumanrightsblog.com/2015/12/03/the-socialite-who-rejected-life-saving-treatment/

Hospital sorry for 'do not resuscitate' order on patient with Down's Syndrome

East Kent Hospitals NHS Trust has made an apology for placing a ‘do not resuscitate’ order on Andrew Waters, a patient with Downs Syndrome, during a hospital stay in 2011. Andrew’s family was not consulted or informed about it and only found out following his discharge from hospital.

The hospital stay related to his dementia and staff decided that he should not be resuscitated if he developed heart or breathing problems. The order listed Down's Syndrome and his learning difficulties among the reasons.

The Trust has accepted that it breached Andrew’s human rights.

For the full article please see: http://www.bbc.co.uk/news/health-34938832

 

 

 Re JW [2015] EWCOP 82

This case relates to a disputed deputyship application. P’s son made an application to the Court of Protection to be appointed as joint deputy alongside the existing deputy, the local authority.

P’s son stated that the reason he was applying now was that he was nearing retirement and had the time and resources to take on the role for his mother. He felt that it was in her best interests for a family member to be appointed so that they could be more ‘hands on’ and proactive in managing things. The local authority objected to the application on the grounds that they only acted for clients where there were no suitable family members to take on the role. They felt it was a conflict of interest for P’s son to be appointed as deputy as he stood to make a financial gain from the cost of renovating his late sister’s property which P had inherited.

P’s son then altered his application to replace the local authority and be appointed as sole deputy rather than act jointly.

Senior Judge Lush allowed P’s son’s revised application and appointed him as P’s deputy in place of the local authority. His reason for doing so was that he deemed it sensible to repair and renovate his late sister’s property so that it can be sold to the best advantage. Despite the fact that this improvement in value of the property would arguable not benefit P, it would benefit her estate and therefore her six children. He quoted Mr Justice Morgan in Re G(TJ):

"… the word 'interest' in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way directly or indirectly self-interested, can be a relevant factor. Further, the wishes which P would have formed, if P had capacity, which may be altruistic wishes, can be a relevant factor. It is not necessary to establish that P would have been aware of the fact that P's wishes were carried into effect. Respect for P's wishes, actual or putative, can be a relevant factor even where P has no awareness of, and no reaction to, the fact that such wishes are being respected."

Nevertheless, he did acknowledge that there was a conflict of interest and he managed this by imposing various safeguards to prevent abuse, including limiting what remuneration he was entitled to, setting a budget for the refurbishment work and limitations on his authority to sell the properties forming part of P’s estate along with a security bond of £250,000.

For the judgment: http://www.bailii.org/ew/cases/EWCOP/2015/82.html

 

 Re AG [2015] EWCOP 78

This was an appeal from an order concerning AG’s welfare arrangements heard by Sir James Munby, President of the Court of Protection. The appeal was brought by AG’s mother. AG is a young woman with a moderate learning disability and autistic spectrum disorder. In 2007 AG took over the tenancy of a property, however continued to live with her mother for a time before living between the two places. During the course of 2011 there were a number of allegations and counter-allegations regarding abuse by AG’s mother, inadequate care by AG’s care staff and assaults by AG. In November 2011, AG was moved to another placement and a DOLS authorisation was granted for this placement.

The grounds of appeal lodged by AG’s mother were that the judge:

(a)    Erred in not conducting an adequate assessment of AG’s capacity

(b)   Failed to make findings of fact in relation to the events in 2011 that had triggered the proceedings

(c)    Made a decision as to where AG should live which by September 2013 was a fait accompli

(d)   Acted in breach of Article 8 in directing that AG’s mother’s contact with AG should be ‘heavily’ supervised

Sir James Munby found that there was no evidence that would have justified the Judge to embark upon a review of capacity.  In relation to the findings of fact, he found that the Judge was fully entitled to proceed in the way that he did and any issues relating to the finding of facts should have been raised much earlier. The decisions relating to where AG were all clearly articulated and based upon professional and other evidence that the Judge was entitled to accept and there was no breach of AG or DG’s Article 8 rights. The Judge had been appropriately sensitive in balancing AG’s needs and wishes against DG’s aspirations. The appeal was dismissed.

Sir James Munby made the following further observation:

“Local authorities must seek and obtain proper judicial authority before moving an incapacitous adult from their home into other accommodation. Local authorities themselves do not have the power to do this.

Local authorities also need to appreciate and take appropriate steps to minimise the understandable distress and anger caused to someone in DG’s position when initial relief is obtained from the court on the basis of allegations which are not thereafter pursued.”

For the judgment: https://www.judiciary.gov.uk/wp-content/uploads/2015/11/ag_final_cop_.pdf

Re DWA (2015) EWCOP 72

This was an application for a reconsideration of a revocation of an attorney by a previous judgment. The application was brought by the attorney whose appointment had been revoked on the grounds that the attorney had behaved in a way that contravened her authority or was not in the donor’s best interests.

DWA executed both property and affairs and health and welfare LPAs in 2012 appointing her three children as attorneys. In 2014, the Public Guardian made an application to the court for a partial revocation of the LPA allowing DWA’s two sons to continue acting. DWA’s daughter was removed as she made payment to herself from DWA’s estate without seeking approval from the court and failed to account for the monies.

Angela failed to attend the hearing and SJ Lush was not persuaded to change his earlier decision revoking her appointment.

For the judgment: http://www.bailii.org/ew/cases/EWCOP/2015/72.html