39 Essex Chambers, 'MCA update - all the capacity news that’s fit to print for July 2021' (23/7/21)

Mental Capacity Report note This note contains a summary of key developments in the Court of Protection and mental capacity law.

Full text of email

For a number of reasons, not least the small matter of the Supreme Court’s expedition of the appeal in JB, which occupied a very large part of the headspace of one of the editors of the Report at a vital moment for the Report, a Mental Capacity Report is not going to be landing in your inboxes this month, but rest assured that we will be back in September after our usual August break. In the meantime, and by way of end of term email, there are some key developments recently we wanted to draw to your attention (amongst these, frustratingly is not the draft updated Code of Practice to the MCA / LPS, which is still awaited):

1. In SM v The Court of Protection & Anor [2021] EWHC 2046 (Admin)B, Mostyn J confirmed (should such confirmation be required) that the Court of Protection is a superior court of record on an equivalent plane to the High Court, such that a decision by a judge of the Court of Protection to refuse permission to appeal is not amenable to judicial review in the same way as (currently) certain equivalent decisions within the Tribunal system are.

2. The Court of Protection has determined a steady stream of medical treatment decisions, including:

a. Re KM [2021] EWCOP 42B, where Keehan J held that continuing treatment of the devoutly religious person in question was futile, and that it was not in best interests for the treatment to continue, notwithstanding the fact that continuation of the treatment would prolong his life and would be in accordance with his wishes, feelings, beliefs and values, and those of his family.
b. Re TS (Pacemaker) [2021] EWCOP 41B, where Peel J endorsed the fitting of a pacemaker to a man who was objecting to surgery, not on principle, but on the basis of a delusional belief that he was under persecution and would agree when the persecution ended.
c. Re ZA (Mental Capacity Act 2005) [2021] EWCOP 39B, where Cohen J declined to endorse the above the knee amputation of the person’s right leg, in a case the judge made clear was not about someone choosing to die, but about someone who wished to take her chances and enjoy what she perceived as the best standard of living, independence and dignity, even if it were to be for a shorter period.
d. University Hospitals Dorset NHS Foundation Trust & Anor v Miss K [2021] EWCOP 40M, Lieven J made clear that it was not good enough for NHS Trusts to say that they are acting in good faith when this becomes an exercise in burden-shifting in medical treatment cases, and the burden of making the application at the 11th hour falls upon the court and the Official Solicitor.

3. The P saga regarding when a party can be discharged from proceedings against their will has continued:

a. The Court of Appeal declined to make any costs orders arising from successful appeal of P’s mother against the order of Hayden J discharging her as a party;
b. The case having returned to first instance, and after a hearing on notice to the mother, Lieven J discharged her as a party on the basis that the evidence suggested that her continued participation meant that P could not participate, such that it would be contrary to her best interests for her mother to continue to remain a party.

4. The National Mental Capacity Forum is looking for a new chair to succeed Baroness Ilora Finlay. Full details of how to apply are to be found here here. The closing date for applications is 31 August 2021.

5. The Ministry of Justice has launched a consultation on modernising LPAs, closing on 13 October 2021, and to be found here. The consultation proposals include amendments both to the MCA 2005 and secondary legislation. See also the OPG blog about the consultation here.

6. In Hughes v Pritchard & Ors [2021] EWHC 1580 (Ch)B, even compliance with the so-called ‘golden rule’ did not suffice to save a will from a challenge based upon lack of testamentary capacity.

7. Sample COP1 and COP1A forms have been published for applications relating to monies held in Child Trust Funds (but equally relevant for other situations where a relatively small sum of money is in issue).

8. In response to an FOI request, NHS Digital has published a table breaking down DoLS applications between 1 April 2016 and 31 March 2020 by ethnicity and age group.

9. In relevant COVID-19 developments:

a. The care home guidance and supported living guidance has been updated to reflect the move (in England) to remove most legal restrictions on gatherings, etc – this is summarised on my website here.
b. The Care Act easements in England are finally legislatively dead, the relevant statutory instrument having been laid before Parliament on 16 July 2021, some four months after the Government announced that they would be ended.
c. The impact assessment for the legislation which will make vaccination a condition for those working in a care home registered by the CQC has been published, making – put neutrally – striking reading, suggesting a ‘central estimate’ of some 7% of workers who will be unvaccinated by the end of the grace period.

10. In the mental health context, overlapping as it does with mental capacity, the following developments of relevance have taken place:

a. The Government has published its response to its recent public consultation on reforming the MHA 1983. Of particular relevance for those working with the MCA 2005 is that the consultation showed no significant support for the proposal set out in the White Paper that non-objecting patients would be subject to the DOLS/LPS, not the MHA 1983, nor overall agreement on what alternative changes to the interface would improve the application. In addition, the proposal to change the interface was a key concern for a number of stakeholders and organisations who responded. The Government is therefore not proposing to take forward reform of the interface at this time. Instead, the Government will seek to build the evidence base on this issue through robust data collection, to better understand the application of the interface. In addition, the Government will continue to engage with stakeholders to understand what support and guidance could help improve application of the current interface.
b. The DHSC has responded to CQC’s “Out of Sight, Out of Mind” report on the use of restraint, seclusion and segregation in care services. It has also responded to the report and recommendations from Baroness Hollins and the Oversight Panel’s review of the Independent Care (Education) and Treatment Reviews for people with a learning disability and autistic people in inpatient settings.
c. The Commons Health Committee has published its report on the treatment of autistic people and people with learning disabilities, recommending that “the Trieste model of care is implemented for autistic people and people with learning disabilities by the Department of Health & Social Care and NHS England & Improvement. All new long-term admissions of such people to institutions should be banned except for forensic cases.”
d. In R (Morahan) v Her Majesty's Assistant Coroner For West London [2021] EWHC 1603 (Admin)B, the High Court considered, and delineated, the scope of the Article 2 ECHR investigative obligation (and, by implication, the ‘operational’ duty under Article 2 ECHR to secure life) in relation to voluntary mental health patients at home in the community, distinguishing the Supreme Court decision in Rabone to find that, on the facts of the case, no operational (and therefore not investigative) duty arose.
e. In an interesting ‘twin-track’ case, Lieven J both determined questions of residence, care and contact as a Court of Protection judge, and an application for discharge of P’s father as nearest relative under the MHA 1983: A Local Authority v SE & Ors [2021] EWCOP 44B.

11. There have been two important cases relating to children of relevance to readers of the report:

a. In Fixsler & Anor v Manchester University NHS Foundation Trust & Anor [2021] EWCA Civ 1018B, the Court of Appeal undertook a careful analysis of whether and when it is appropriate to transpose the approach under the MCA 2005 focused upon the wishes and feelings of the person to the situation of a very young child, emphasising that the ‘assumed point of view of the child’ does not carry any precedence over any of the other factors in the welfare checklist.
b. In Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam)B, MacDonald J refused to authorise the deprivation of liberty of a 12 year old child by use of the inherent jurisdiction, on the (exceptional, and disturbing) facts of the case. It will be very interesting, in this regard, to see what the Supreme Court does in Re T in relation to the widespread use of the inherent jurisdiction as a ‘workaround’ for the lack of secure accommodation for young people: judgment will be handed down on 30 July at 9:45, available here.

12. Readers both in Scotland and further afield will want to update themselves as to the progress of the Scott Review of Mental Health Law, as captured in the interim report available here.

a. Readers in Scotland will also want to be aware that Adrian comments that he understands that Scottish Ministers have concluded that separate legislation to remedy Scotland’s deprivation of liberty deficit would take too long, and would risk impacting on the work of the Scott Review, so the route of meeting immediate needs by changes to regulations and associated practice guidance will be pursued. More to follow, as they say.
b. Looking wider afield, Alex has co-authored a report for the UN Special Rapporteur on the Rights of Persons with Disabilities on the interaction between the CRPD and the 2000 Hague Convention on the Rights of Persons with Disabilities. The report can be found here, and the statement by the Special Rapporteur and the Independent Expert on the enjoyment of all human rights by older persons, Claudia Mahler, can be found here.

13. Finally, the World Congress on Adult Capacity 2022 organising committee has announced that the conference to be held in Edinburgh next year will be in person – for more details, and to register interest, see the Congress website here.

We will be taking a proper break over August, but fuller commentary will be forthcoming on the cases above in the September report, by which stage the Court of Appeal will also have heard (on 29 July) if not determined, the Secretary of State’s appeal against the decision of Hayden J in Re C concerning access to sex workers. In the interim, if you are missing us, you can sign up to one of Neil’s courses here, or watch Alex’s shedinars / ‘in conversation’ with here (the most recent, with Professor Rosie Harding, being about accessible legal information).

We leave you with this final observation from a case from an unrelated area, which we suggest may be useful guidance for all those writing reports in the MCA context:

“Clear and adequate reasoning is a matter of content, not length. There is a difference between brevity and lack of substance. A long document can contain no substance. Lengthy quotation and identifying materials without discussing them are often the culprits here. On the other hand, a single sentence, or two, may contain substance enough. The clearer the thinking, the easier it is to be precise and, therefore, brief. The more muddled the thinking, the less likely it is that multiplying words will produce a cogent, transparent or persuasive analysis.”

We appreciate that it may well be an empty wish for many to wish you a break over summer, but we do so nonetheless – as you definitely deserve it!

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Type: Newsletter🔍

Title: MCA update - all the capacity news that’s fit to print for July 2021

Author: Ruck Keene, Alex🔍

Publication: 39 Essex Chambers🔍

Date: 23/7/21🔍

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