Newsletter Spring 2017
Court of Protection Update November 2016- January 2017
We were honoured to have Senior Judge Denzil Lush and Ruth Henke QC as speakers at our Court of Protection seminar which we held at the Crowne Plaza toward the end of last year. The seminar was extremely well attended and received. We look forward to presenting many more events in the future for those who practise in this area.
It has been an interesting couple of months for those who practise in the Court of Protection and, as such, I propose to summarise some of the cases which are of relevance:-
- RE N (DEPRIVATION OF LIBERTY CHALLENGE) sub nom N (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR) v A LOCAL AUTHORITY (2016)  EWCOP 47CP (Peter Jackson J) 21/11/2016
This concerned a man in his 40s who had mild learning difficulties and suffered from a paedophilic disorder did not have the capacity to decide on his care arrangements, specifically whether he should be accompanied in the community. His deprivation of liberty under the Mental Capacity Act 2005 Sch.A1 was in his best interests. It was considered that, overall, the supervisory arrangements in place were proportionate and necessary. There was no lesser form of interference, in the form of medication or treatment, that could be offered.
- E CA (NATURAL DELIVERY OR CAESAREAN SECTION) sub nom UNIVERSITY HOSPITAL NHS TRUST v CA (BY HER LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2016)
 EWCOP 51 CP (Baker J) 08/12/2016
The Court of Protection declared that a pregnant 24-year-old, who had autism and learning difficulties, lacked the capacity to litigate and make decisions concerning the management of her pregnancy. It further declared that it was lawful and in her best interests to undergo a planned Caesarean section. The Court was particularly concerned that the instant proceedings were issued by the hospital trust less than a fortnight before her due date, the court highlighted that all NHS Trusts had to ensure that their clinicians, administrators and lawyers were fully aware of, and complied with, the important guidance given in NHS Trust v FG  EWCOP 30.
- CHESHIRE & WIRRAL PARTNERSHIP NHS FOUNDATION TRUST v Z (2016)  EWCOP 56
Fam Div (Hayden J) 30/12/2016
The best option for a woman with extremely severe anorexia nervosa was treatment on a voluntary basis. That option respected her autonomy and was preferable to the other options, namely forced feeding and feeding under sedation.
The court had to decide how a 46 year old woman who had suffered with chronic anorexia nervosa since the age of 15 should be treated. Her anorexia was extremely severe and she had a history of resisting or failing to engage with treatment. She also suffered from other health issues, particularly osteoporosis. In 2016 she suffered further drastic weight loss which culminated in her presenting with life-threatening physical condition in November 2016 and in her detention under the Mental Health Act 1983 s.3. Her medical team had outlined three options. The first involved her continued detention in hospital and naso-gastric feeding under physical restraint until her weight and physical health improved to the point where it was possible to discharge her. The second option also involved a continuation of feeding in hospital but under chemical sedation. The third option was that Z should be discharged from the framework of the 1983 Act and treated only on a voluntary basis. That option was subject to a structured plan aimed at encouraging Z to comply with a feeding programme. The court had already declared that she lacked the capacity to make decisions as to whether to undergo treatment. The Court held that the third option was ultimately the only proposal which carried any vestige of hope, and it was the one which most effectively preserved Z’s dignity and autonomy.
4.RE MM (A PATIENT) sub nom TERESA KIRK v (1) DEVON COUNTY COUNCIL (2) MM (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2017) EWCA Civ 34
CA (Civ Div) (Sir James Munby PFD) 30/01/2017
In this high profile case the court approved a consent order setting aside an order compelling the appellant to authorise the return to the UK of an elderly man who lacked capacity and was living in a care home in Portugal. That was the proper course to adopt, and was in the patient’s best interests. It was futile to make any further attempt to subject the appellant to coercive orders designed to obtain the patient’s repatriation.