Court of Protection


Court of Protection orders continued reporting restrictions after death

27 April 2016 by Rosalind English

why_we_need_kidney_dialysis_1904_xIn the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others [2016] EWCOP21 – read judgment

The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.

I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act.  An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another  [2015] EWCOP 80).
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Best interests, hard choices: The Baby C case

19 November 2015 by Leanne Woods

Royal courtsJudgments in best interests cases involving children often make for heart-wrenching reading. And so it was in Bolton NHS Foundation Trust v C (by her Children’s Guardian) [2015] EWHC 2920 (Fam), a case which considered Royal College of Paediatrics and Child Health guidance, affirming its approach was in conformity with Article 2 and Article 3 ECHR. It also described, in the clearest terms, the terrible challenges facing C’s treating clinicians and her parents.
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Management consultant charges mother £400 for each visit to nursing home – Court of Protection

28 October 2015 by Rosalind English

Court of protectionSF, Re [2015] EWCOP 68 (26 October 2015) – read judgment

This Court of Protection case has, unusually, made the papers, and when you read the details you won’t be surprised. What the judge described as a “callous and calculating” son charged his widowed mother, who suffered from dementia, more than £117 000 for “out of pocket expenses” visiting her in her nursing home.  He had been in charge of her expenses since 2004 when Sheila (the mother) had been admitted to hospital under the Mental Health Act 1983. But alarm bells only went off after her unpaid nursing bills reached nearly £30 000. The Public Guardian launched an enquiry that led to this hearing of an application for the court to revoke the son’s  (Martin’s) Enduring Power of Attorney (‘EPA’) and to direct him to cancel its registration. The Public Guardian also applied to freeze Sheila’s bank account.
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Transparency in the Court of Protection: press should be allowed names

19 March 2015 by Rosalind English

312856-002.jpgA healthcare NHS Trust v P & Q [2015] EWCOP (13 March 2015) – read judgment

The Court of Protection has clarified the position on revealing the identity of an incapacitated adult where reporting restrictions apply.

This case concerned a man, P, who as a result of a major cardiac arrest in 2014, has been on life support for the past four months. Medical opinion suggests that he is unlikely ever to recover any level of consciousness, but his family disagrees strongly with this position. The Trust therefore applied to the Court for a declaration in P’s best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. The trust also applied for a reporting restrictions order. When it sought to serve that application on the Press Association through the Injunctions Alert Service, the family (represented by the second
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Press has no direct role in welfare proceedings in Court of Protection

12 May 2014 by Rosalind English

G (Adult), Re [2014]  (Associated Newspapers Limited intervening) EWCOP 1361 (1 May 2014) – read judgment

Sir James Munby, President of the Court of Protection has ruled that the Daily Mail has no standing to be joined as a party in welfare proceedings in relation to a vulnerable adult who has been declared by the courts as lacking capacity under the Mental Capacity Act. 

Background to the application

The court was concerned with a 94 year old woman, a British African Caribbean who  lives in her own home in London. G is 94 years old. G has never married and has no children. She has no family living in the UK.  She suffers from conditions that have limited her mobility; arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also has high blood pressure and double incontinence. G rarely leaves home now, except for hospital appointments.
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Irascible does not mean incapable – Court of Protection

10 April 2014 by Rosalind English

brain-in-headWandsworth Clinical Commissioning Group v IA (By the Official Solicitor as his Litigation Friend) [2014] EWHC 990 (COP) 3 April 2014 – read judgment

This was a case about determination of mental capacity,  which both judge and counsel described as “particularly difficult and finely balanced”.  The judge was confronted with a great deal of conflicting evidence about the capabilities of the individual in question, but concluded in the end that

His capacity may be seen to have fluctuated in the past; this is in my judgment more likely to be attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness … than the progression of symptoms of his acute brain injury.

Background

IA is a 60 year old man from a professional family and himself a physics graduate who once ran his own business. But his life has been eroded by extremely poor health, Type II Diabetes and related disabilities such as anaemia and partial blindness. Then in 2007 he was the subject of a violent criminal assault, being repeatedly kicked in the head, leaving him with a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain. 
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Anonymity Part 2: Child personal injury cases

19 December 2013 by Rosalind English

Mr-Justice-Tugendhat-15_150JXMX (A Child) v Dartford and Gravesham NHS Trust  [2013] EWHC 3956 (QB) – read judgment

Elizabeth-Anne Gumbel QC of 1 Crown Office Row represented the claimant in this case. She has nothing to do with the writing of this post.

In Part 1 on this subject, I discussed medical confidentiality and/or legal restrictions designed to protect the privacy of a mother and child. This case raises the question in a slightly different guise, namely whether the court should make an order that the claimant be identified by letters of the alphabet, and whether there should be other derogations from open justice in the guise of an anonymity order, in a claim for personal injuries by a child or protected party which comes before the court for the approval of a settlement.
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VIDEO: Dignity, Death and Deprivation of Liberty – Human Rights in the Court of Protection

9 November 2012 by Adam Wagner

Last month 1 Crown Office Row hosted a fascinating panel debate on the Court of Protection and the incredibly difficult issues surrounding assisted dying.  The panel included Philip Havers QC, the philosopher A.C. Grayling and Leigh Day & Co.’s  human rights partner Richard Stein. You can now view the video here or below. Also see here for Rosalind English’s report of the event.

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Balancing transparency with ‘secrecy’ in the Court of Protection – Lucy Series

7 March 2011 by Guest Contributor

There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom. An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.

The reasons for this appearance are complex though, and not necessarily the fault of any individuals working within the courts. I think it’s important to draw a distinction between different ways that greater ‘transparency’ could be achieved; some might be more helpful than others.


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Are we truly free?

3 March 2011 by Isabel McArdle

P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener) [2011] EWCA Civ 190- read judgment

What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.

In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.

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Media privacy of severely disabled musical prodigy protected

28 April 2010 by E. R. Wrigley

 

A (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) v INDEPENDENT NEWS & MEDIA LTD & ORS [2010] EWCA Civ 343 – Read judgment

This appeal was bought on behalf of a severely disabled adult (known as “A”), against the order of Hedley J of 19 November 2009 that the media should be granted access to a hearing in the Court of Protection.  The Lord Chief Justice has refused the appeal.

The case was unconventional, largely because of A’s own situation.  A had been totally blind from birth and suffered from acute learning difficulties associated with Autism Spectrum Disorder, which meant that he was not able to lead an independent life and was dependent on others for his care.   Despite this, however, A had taught himself the piano and had gone on to become an extraordinary gifted musician, and was described by the judge as ‘a man of remarkable accomplishment’.  
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