Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/5/21)

Book update This web page contains quarterly updates to Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (3rd edn, LAG 2019). The paragraphs amended since the previous update are: 3.40, 4.97-4.100, 10.17, 11.7, 12.12, 12.40, 17.20, 21.39, 22.78, 23.2, 26.9 and 27.6.

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The changes since the 1/2/21 version are as follows. These are all new paragraphs unless stated otherwise. Note that hyperlinks are not reproduced below.

3.40

The correct ordering of the capacity test (i.e. starting with the question of whether the person is functionally capable or incapable of understanding, retaining, using and weighing the relevant information and communicating their decision) was considered by Hayden J in Pennine Acute Hospitals NHS Trust v TM [2021] EWCOP 8M. In the decision, he also made clear that where (1) a person is functionally incapable of doing one (or more) of those things; and (2) the person had multiple impairments or disturbances in the functioning of their mind or brain; then (3) it did not matter that it was not possible to identify which was causing the inability, so long as it was clear that at least one of them was the cause: see paragraph 37. This is to be contrasted with the position where the other potential cause of the person’s inability could not be said to be an impairment or disturbance – stemming either from their personality (see LB Tower Hamlets v PB [2020] EWCOP 34B at paragraph 39) or external coercion, at which point it may be necessary to consider the High Court’s inherent jurisdiction in respect of vulnerable adults).

4.97-4.100 (additional paragraphs)

In University Hospitals of Derby and Burton NHS Foundation Trust & Derbyshire Healthcare NHS Foundation Trust v MN [2021] EWCOP 4B, Hayden J emphasised the limited nature of the steps that the court would be prepared to countenance endorsing in a medical treatment case on an interim basis. On the facts of that case, where P’s views had not been sought and put before the court, Hayden J was only prepared to endorse the treatment plan advanced by the Trust to secure treatment in relation to man suspected with bladder cancer pending the final hearing where:

  • MN was in pain and/or discomfort and/or was unable to urinate;
  • MN’s views had been canvassed regarding having emergency treatment (it having been explained to him that such treatment would release him from pain and/or discomfort and/or would enable him to urinate);
  • The emergency treatment would include releasing any blood clots in his bladder (or other clinically indicated and operable obstruction) preventing him from urinating;
  • MN continued to express a resistance to emergency treatment.

10.17

The court has the power to discharge a person as a party on application from another party, or of its own motion. However, it should be exercised with care. See Re P (Discharge of Party) [2021] EWCA Civ 512M at paragraph 65, per Baker LJ

To sum up, given the serious concerns about the harm allegedly suffered by P and the risk of future harm, the judge was entitled to consider the matter in the first instance without notice to the appellant and to withhold evidence from her. He would have been fully entitled to make the order which the respondents were asking for, suspending contact between P and the appellant for a limited period, probably measured as a few weeks in the first instance, to allow the parties to reflect. In my judgment, however, he plainly went too far by discharging the appellant as a party without giving her the opportunity to make representations and by failing to consider alternative procedures which might have protected P’s best interests whilst limiting the infringement of the appellant’s rights. I see no reason to doubt that he considered the written representations subsequently filed on the appellant’s behalf, but in my judgment he ought to have provided reasons for his decision, albeit in brief terms, and was wrong to adjourn indefinitely the application for a judgment.

11.7

In University Hospitals of Derby and Burton NHS Foundation Trust & Derbyshire Healthcare NHS Foundation Trust v MN [2021] EWCOP 4B, Hayden J emphasised the limited nature of the steps that the court would be prepared to countenance endorsing in a medical treatment case on an interim basis. On the facts of that case, where P’s views had not been sought and put before the court, Hayden J was only prepared to endorse the treatment plan advanced by the Trust to secure treatment in relation to man suspected with bladder cancer pending the final hearing where:

  • MN was in pain and/or discomfort and/or was unable to urinate;
  • MN’s views had been canvassed regarding having emergency treatment (it having been explained to him that such treatment would release him from pain and/or discomfort and/or would enable him to urinate);
  • The emergency treatment would include releasing any blood clots in his bladder (or other clinically indicated and operable obstruction) preventing him from urinating;
  • MN continued to express a resistance to emergency treatment.

12.12

In Re P [2021] EWCOP 21M, Mostyn J expressed the view that it was:

33. […] virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter. It seems to me to be completely illogical to say that someone is incapable of making a decision about medical treatment, but is capable of making a decision about what to submit to a judge who is making that very determination.

[…]

39. I am not saying that differential decisions are impossible, but I am saying, as I have previously said in an admittedly completely different context, that such a case should be as rare as a white leopard.

12.40

Two Practice Notes have been published by the Official Solicitor, Sarah Castle, setting out important practicalities relating the appointment of the Official Solicitor as litigation friend of P in the Court of Protection and requests by the court to the Official Solicitor to act as, or appoint counsel to act as an advocate to the court. Both are dated 3 February 2021. One note deals with health and welfare proceedings, and the other with property and affairs proceedings.

17.20

In Re JBN [2019] EWCOP 62, HHJ Marin departed from the general rule to require the Public Guardian to pay half of the costs of an attorney after an application to remove him had been refused. HHJ Marin was critical of the fact that the proceedings were commenced “solely on the basis of the desk-top evaluation of the case carried out by an investigator. I am clear that this led to proceedings being issued which went beyond what was necessary and reasonable.” He was particularly concerned also that the Public Guardian sought without notice orders of a very serious nature, namely the suspension of the LPA and the appointment of an interim deputy, which completed ignored the fact that the attorney was cooperating. HHJ Marin was also troubled by the fact the Public Guardian had not responded to attempts by the attorney to settle; he observed that “the rules of court apply equally to all court users including the Public Guardian. Rule 1.4 COPR 2017 imposes a duty on litigants to help further the overriding objective and this includes co-operating with the other party.” It appeared at the time of the hearing that the OPG might have a policy of not negotiating in cases brought before the court; the OPG confirmed subsequently to the court that this was not the case.
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In Re JBN [2019] EWCOP 62, HHJ Marin departed from the general rule to require the Public Guardian to pay half of the costs of an attorney after an application to remove him following an investigation had been refused. HHJ Marin was critical of the fact that the proceedings were commenced “solely on the basis of the desk-top evaluation of the case carried out by an investigator. I am clear that this led to proceedings being issued which went beyond what was necessary and reasonable.” He was particularly concerned also that the Public Guardian sought without notice orders of a very serious nature, namely the suspension of the LPA and the appointment of an interim deputy, which completed ignored the fact that the attorney was cooperating. HHJ Marin was also troubled by the fact the Public Guardian had not responded to attempts by the attorney to settle; he observed that “the rules of court apply equally to all court users including the Public Guardian. Rule 1.4 COPR 2017 imposes a duty on litigants to help further the overriding objective and this includes co-operating with the other party.” It appeared at the time of the hearing that the OPG might have a policy of not negotiating in cases brought before the court; the OPG confirmed subsequently to the court that this was not the case.


22.78

The Government announced on 16 July 2020 that LPS would not be coming into force on 1 October 2020, but instead in April 2022.

23.2 (one paragraph changed)

The guidance has been referred to in several cases decided by the Vice-President subsequently, who has also sought to identify cases exemplifying good practice (see, for instance, Hull University Teaching Hospitals NHS Trust v KD [2020] EWCOP 35 and University Hospital Coventry and Warwickshire NHS Trust v K and Mrs W [2020] EWCOP 31).
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The guidance has been referred to in several cases decided by the Vice-President subsequently, who has also sought to identify cases exemplifying good practice (see, for instance, Hull University Teaching Hospitals NHS Trust v KD [2020] EWCOP 35 and University Hospital Coventry and Warwickshire NHS Trust v K and Mrs W [2020] EWCOP 31). See also, in the context of covert medication, the decision of Theis J in An NHS Trust v XB [2020] EWCOP 71.


26.9

In LB Haringey v Emile [2020] MHLO (CC), detailed consideration was given – in the context of a dispute – as to the award of damages to be made in circumstances where a local authority had not authorised the deprivation of liberty to which the person was subject. The consideration took place in the context of a claim for false imprisonment, rather than unlawful deprivation of liberty, so the reasoning of the judge may not be directly transferrable to such claims. However, it is suggested that the following observation is directly transferrable:

21. The District Judge was entitled to conclude that the local authority’s failure to comply with the Mental Capacity Act 2005 particularly with regard to the best interests provisions of Schedule A1 were substantial and causative of harm. He was entitled to conclude as he plainly did that the local authority had not proved that it was inevitable that the Defendant’s care would have been the same had the statutory framework been properly deployed in 2008 or at any other time before August 2016 and that it was speculative to proceed on the basis of what the Court of Protection might or might not have done had a challenge been initiated. He was entitled to proceed on the basis that the local authority’s failures were more than merely technical ones.

27.6

In Re UR [2021] EWCOP 10M, Hayden J set out a checklist for situations where the Court of Protection is to be asked to decide that a person should leave the country permanently, including consideration of the following:

i. Liaison with the relevant Embassy/ Consulate (in the first instance) to ascertain what guidance and assistance can be provided;
ii. Evidence as to physical health to travel (GP);
iii. Evidence as to mental health to travel (psychiatrist);
iv. Legal opinion regarding citizenship, benefit entitlement, health and social care provision in the relevant country, and such other issues relevant to the case;
v. Consideration of any applications that need to be made as a consequence of any legal opinion provided;
vi. Independent social work evidence regarding the viability of the proposed package of care in the relevant country if such evidence cannot be provided by the parties to the proceedings or a direction under section 49 MCA;
vii. Confirmation of travel costings from the commissioners of the care package, both in relation to P and any carers that may need to travel with them (who will pay?);
viii. Confirmation that the necessary medication/ care will be available during travel from the UK/ for the immediate future in the new country
ix. Transition plan/ care plan, to include a contingency plan and how the matter should return to court in the event of an emergency in implementing the proposed plan;
x. Best interest evidence from the relevant commissioners;
xi. Wishes and feelings evidence;
xii. Residual orders to allow the plan to be implemented, including single issue financial orders regarding opening/closing of UK bank accounts, the purchasing of essential items to travel (if necessary);
xiii. Covid-19 considerations prior to travel (if applicable)

Hayden J also set out the full (anonymised) order that he had made, again as a template for future cases.

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Title: Court of Protection Handbook: Handbook updates

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Date: 1/5/21🔍

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