Cover - Annual Review 2021.jpg


39 Essex Street summary

This page lists cases for which a case summary from the 39 Essex Street Mental Capacity Law Newsletter is incorporated into the MHLO case page.

The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
LBX v K, L and M [2013] EWHC 4170 (Fam), [2013] MHLO 149 — "In the judgment I handed down this morning I concluded that L has capacity in relation to decisions about where he should live, the care he receives and contact with his family. Having made that decision I then considered the question as to whether I should invoke the inherent jurisdiction as L was a vulnerable adult. ... I accept this is a difficult balance but, in this case, I am entirely satisfied that because of the vulnerability that this particular person has, and the very clear psychiatric evidence dating back to Dr. Halstead's report in 2007, endorsed by the various witnesses that gave evidence earlier this week, that he remains vulnerable to overwhelming emotional issues which could compromise his capacity. He needs to be able to retain his capacity in circumstances where he has emotional safety. That can only be where there is a proportionate structure in place that enables him to be able to maintain his capacity in a relatively calm environment, and free from the emotional maelstrom, as I have described it, resulting from the relationship that he has with his father in particular, and the relationship the father has with those who support L in the care that he has." 2014‑08‑07 13:39:57 2013 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, Transcript

LBX v K, L and M [2013] EWHC 3230 (Fam), [2013] MHLO 148 — "The preliminary issue, therefore, that I have to determine is whether there is an evidential foundation that L is more likely than not to have the potential to achieve mental capacity to make decisions regarding residence and contact, and some specific care related decisions. ... Having considered all the evidence and the submissions that have been made, I have reached the conclusion that there does need to be a further assessment as to L’s capacity." 2014‑08‑07 13:26:28 2013 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Transcript

Bostridge v Oxleas NHS Foundation Trust [2014] EWCA Civ 1005, [2014] MHLO 85The judge had awarded only nominal damages because the patient had suffered no loss as a result of his unlawful detention. The Court of Appeal gave permission to appeal, stating as follows: "Mr Drabble submits that in approaching the matter as he did the judge fell into error because the decisions of the Supreme Court in Lumba and Kambadzi do not establish that only nominal damages follow where there was a complete absence of statutory authority for a detention. To the contrary, Mr Drabble argues, there is a distinction between an unlawful detention where there was no threshold power to detain and detention which is unlawful on other grounds despite there having been lawful authority to detain in the first place. Moreover, Mr Drabble continues, the Act reflects the particular importance of compliance with the procedural requirements for lawful detention and it is simply no answer to the appellant's claim to say that he could have been detained had the appropriate procedures been followed. What is more, says Mr Drabble, the appellant has lost the protection of the rights and procedures which Parliament has provided in the Act for vulnerable persons such as him. That, he says, is a real not a nominal loss. I have been persuaded that these are points which merit consideration by this court, both because an appeal would have a reasonable prospect of success and because the appeal raises a point of principle, namely the approach to be adopted where a person responsible for an unlawful detention was not in a position lawfully to detain the subject without ensuring that an important condition precedent had been fulfilled, the condition precedent being compliance with the safeguards contained in section 3 of the Act. Further, in the circumstances of this case, compliance with those safeguards was not a matter which lay wholly within the power of the respondent." 2014‑08‑06 21:56:14 2014 cases, 39 Essex Street summary, Judgment available on MHLO, Judgment missing from Bailii, Transcript, Unlawful detention cases

LBX v TT [2014] EWCOP 24, [2014] MHLO 84(1) Consideration of evidence relevant to the capacity of TT to litigate, to make decisions about residence, contact and her package of care, and her capacity to consent to sexual relations, and findings in that regard. (2) Consideration of "(i) How I should approach a 'best interests' decision at an interim hearing (MCA 2005 s48) which has been set up for the calling of reasonably extensive oral evidence; (ii) What factors should influence the exercise of the court's discretion in deciding whether there should be a finding of fact hearing at an interim (or final) hearing?" (3) Findings of fact. (4) Best interests and declarations. 2014‑08‑06 13:13:50 2014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Transcript

LB Bexley v V [2014] EWHC 2187 (Fam), [2014] MHLO 82 — "This matter is listed for a directions hearing at my direction in light of the contumelious failure of the London Borough of Bexley to comply with directions set out in an order of 12 May 2014. By paragraph 19 of that order the local authority were to file their final evidence by 4.00pm on 2 June. ... I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make submissions as to when they could comply with their obligations to file documents. Accordingly, I am in no doubt that it is right that the local authority should be ordered to pay the costs of this hearing." 2014‑08‑05 22:38:36 2014 cases, 39 Essex Street summary, Judgment available on Bailii, Miscellaneous cases, Transcript

LB Islington v QR [2014] EWCOP 26, [2014] MHLO 80 — "This is an application originally made by Camden & Islington NHS Foundation Trust for an order that QR’s current tenancy of a property owned by the London Borough of Islington be terminated due to QR's lack of capacity to make such decision for herself. ... In my judgment QR lacks capacity to make the decisions which are at issue in the case. ... Is this one of those very rare cases where a person may not have subject-matter capacity but has litigation capacity? ... It would fly in the face of my own experience of dealing with the case to find that QR lacks capacity to litigate. ... Removing a person’s capacity to litigate is a significant interference. I am not satisfied on a balance of probabilities that QR lacks the capacity to litigate." 2014‑08‑01 16:22:32 2014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Transcript

Norfolk CC v PB [2014] EWCOP 14, [2014] MHLO 75 — "The issue is whether PB has capacity to decide whether to live with TB, what contact to have with him, and what her care arrangements should be (that issue, it is common ground, includes where she is to live); and, if she is to be accommodated in local authority care, whether she is deprived of her liberty and if so whether this should be authorised by the Court. There is an interim declaration to that effect." The judge comments on the capacity test (causative nexus), the inherent jurisdiction, and case management in the Court of Protection. 2014‑08‑01 11:56:35 2014 cases, 39 Essex Street summary, Best interests, Deprivation of liberty, Judgment available on Bailii, Transcript

Liverpool City Council v SG [2014] EWCOP 10, [2014] MHLO 67 — "This case raises the following question: Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children's home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children's Homes Regulations 2001 (as amended)? Both parties and their counsel in these proceedings submit that the answer is 'yes'. I agree with them that the answer is 'yes'." 2014‑08‑01 10:57:17 2014 cases, 39 Essex Street summary, Deprivation of liberty, Judgment available on Bailii, Transcript

County Durham and Darlington NHSFT v PP [2014] EWCOP 9, [2014] MHLO 65 — "The Trust seeks the Courts authority, and corresponding declarations, as to P's treatment, in particular the possible withdrawal, or non-escalation of, life-sustaining treatment as part of an end of life care package. The Trust contends (and interim declarations have been made to this effect already) that P lacks the capacity to litigate, and to make decisions in relation to the serious medical treatment in issue in this application. Specifically the Trust seeks the following declarations pursuant to section 15(1)(c) of the Mental Capacity Act 2005: (a) That it is lawful and in P's best interests to continue to receive artificial hydration via subcutaneous injection. (b) That it is lawful and in P's best interests that the Trust's treating clinicians shall be permitted: (i) Not to provide artificial nutrition by a percutaneous endoscopic gastrostomy tube or via an alternative artificial feeding regime; and (ii) Not to resuscitate her in the event of either a cardiac or respiratory arrest." 2014‑08‑01 10:44:12 2014 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, No summary, Transcript

The Mental Health Trust v DD [2014] EWCOP 13, [2014] MHLO 62 — "By judgment dated 4 July 2014 ... I set out my reasons for determining that it is in the best interests of DD, a pregnant woman who lacks capacity to make the decision for herself, for her baby to be delivered imminently by caesarean section. Further to a scheduled hearing which took place in the following week, I now consider: (i) Whether it is in DD's best interests that the Applicants should be authorised (a) to provide DD with education in relation to contraception, and then (b) to assess her capacity to make decisions in relation to contraception; ... (ii) Whether I should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include forced entry into her home, and to use such restraint as is deemed necessary to convey her to an appropriate place to provide the opportunity for such education and assessment; (iii) Whether there is reason to believe (per section 48 Mental Capacity Act 2005) that DD currently lacks the capacity to make decisions in relation to contraception; (iv) If there is reason to believe that she currently lacks capacity (in relation to (iii) above), whether it is in DD's best interests that a short-term contraception be administered by way of injection (and authorise the Applicants' staff to do so)." 2014‑08‑01 10:23:23 2014 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, Transcript

The Mental Health Trust v DD [2014] EWCOP 11, [2014] MHLO 61 — "DD is 36 years old. She is at an advanced stage of pregnancy. She has had an extraordinary and complex obstetric history and is now expecting her sixth baby. She has a mild to borderline learning disability, and an autistic spectrum disorder. By application dated 23 May 2014, the Applicants seek declarations and orders in relation to the care and health of DD during the final stage of her current pregnancy, and in the safe delivery of the unborn baby. Specifically, and significantly, they seek a declaration as to the lawfulness in arranging for DD's baby to be delivered by planned caesarean section. The Applicants seek a further order authorising the conduct of an assessment of DD's capacity to make decisions about contraception, following the imminent birth. DD's five older children are all cared for by permanent substitute carers; four of the children have been adopted." 2014‑08‑01 10:18:52 2014 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, Transcript

GW v A Local Authority [2014] EWCOP 20, [2014] MHLO 59 — "In this appeal, a 48 year old woman, hereafter referred to as 'GW', suffering from Huntington's Disease appeals against a decision of His Honour Judge Marston sitting in the Court of Protection. The notice of appeal raised two principal issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the Mental Capacity Act 2005 which had the effect of depriving GW of her liberty. This latter question potentially raised fundamental questions concerning the interpretation of section 48 – namely whether the practice of the Court of Protection in continuing or instigating a deprivation of liberty under section 48 is lawful under the statutory scheme set out in the 2005 Act and the Deprivation of Liberty Safeguards in Schedule A1 to the Act and/or is compliant with Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The fact that this point had been raised was a material consideration in my decision to grant permission to appeal against Judge Marston's order. In their response to this appeal, the first respondent, the local authority for the area where GW lives, being the supervisory body for the purposes of the DOLS, and the second respondent, ('B Ltd') the owners and managers of the residential home where GW is currently living, contended that this proposed appeal amounted in effect to a second appeal following the decision of the district judge. Under rule 182 of the Court of Protection Rules 2007, 'a decision of a judge of the court which was itself made on appeal from a judge of the court may only be appealed further to the Court of Appeal'. At the outset of the hearing before me, Miss Weston on behalf of the appellant (who did not appear at first instance) conceded that this provision ruled out my consideration of the proposed further appeal. Accordingly, the only question for this court to determine is the appeal on the issue of capacity." 2014‑08‑01 10:08:28 2014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Transcript

Re AB (Revocation of Enduring Power of Attorney) [2014] EWCOP 12, [2014] MHLO 55 — "This is an application for the court to revoke an Enduring Power of Attorney on the ground that, having regard to all the circumstances, the attorneys are unsuitable to be the donor's attorneys. ... MD and WD have breached their fiduciary duties in several ways and in the circumstances I am satisfied that they are unsuitable to be AB's attorneys, and I shall revoke the EPA. As far as the choice of deputy is concerned, the appointment of an independent professional deputy or panel deputy would be disproportionate. What is left of AB's estate would rapidly be eroded by the professional deputies' costs. I agree with Miss Cooper that Brent Council is best placed to act as deputy, as AB is in a residential care home and the Council is already funding the lion's share of her care fees." 2014‑07‑28 13:54:59 2014 cases, 39 Essex Street summary, EPA cases - revocation and suitability, Judgment available on Bailii, Transcript

LB Redbridge v G (No 5) [2014] EWCOP 17, [2014] MHLO 53 — (1) Best interests: "I have to conclude that it is not in G's best interests to have C and F [who had insinuated themselves into her home as carers] remaining in her home. I weigh against her expressed wishes and feelings the detrimental effect that C's manipulative and intimidating behaviour has already had on G's emotional well-being and mental capacity, the isolation, the fear and the fact that it is C's behaviour, assisted by F who has supported her throughout, that has caused these proceedings and the gross intrusion into G's life that this case and the additional media attention have brought. It is intended that G should now be allowed to be at peace in her own home as she wants." (2) Residence: "I have already made an order that C and F are to leave the house. The couple have never had any right to reside there in any event there except as permitted by G. G lacks the capacity to decide who she has contact with so that permission is no longer a valid reason for C or F to remain. ... I consider that I have powers under s 17 to make the order I have that C and F vacate G's home..." (3) LPA: "As I have concluded that it is not in G's best interests for C to remain in her home, then it follows that it is not in G's best interests for C to be her appointed health and welfare Attorney. ... On the findings I have made ... it is more likely than not that C used undue pressure. ... I revoke the LPA..." (4) Contact: "I cannot find any benefit for G in having any direct or indirect contact with C or F either now or in the future." 2014‑07‑28 13:36:29 2014 cases, 39 Essex Street summary, Judgment available on Bailii, LPA cases - revocation, Other capacity cases, Transcript

United Lincolnshire Hospitals NHS Trust v N [2014] EWCOP 16, [2014] MHLO 51 — "The critical decision is whether it is in N's best interests to continue invasive, risk laden, medical care as would be involved in a further attempt at artificial feeding. I am utterly convinced that it would not. Accordingly, I declare that it is lawful and in her best interests for the clinicians (a) not to make any further attempt to secure a means of providing artificial nutrition; (b) to withdraw the provision of intravenous fluids and dextrose; and (c) to provide such palliative care and related treatment (including pain relief) as considered appropriate to ensure she suffers the least distress and retains the greatest dignity until such time as her life comes to an end." 2014‑07‑23 21:37:50 2014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Transcript