Medical Treatment: Decisions and the Law
The Mental Capacity Act in Action - Second Edition (2010)
With its 'practical advice' and 'helpful appendices' it is 'comprehensive and userfriendly. As such it would be a most useful manual for the legal practitioner. But this book contains more than that and its appeal should be far wider and of equal value to doctors and social workers as well as lawyers.' Review by Catherine Hopkins in the AvMA Medical & Legal Journal 2010,Vol 16, No 4.
Edited by Christopher Johnston and written by a team of authors at 3 Serjeants' Inn:
Robert Francis QC, James Berry, Bridget Dolan, Christopher Johnston, Nicholas Mullany, Michael Mylonas, Fiona Paterson, Richard Partridge, Edward Pleeth, Debra Powell, Sarah Simcock, Amy Street, Claire Watson, Oliver Williamson and Leanne Woods
Published by Bloomsbury Professional (more information)
Online Editor: Amy Street Assistant: Edward Pleeth
This is the companion website, providing updating material as it becomes available and hyperlinks to website addresses given in the book. The material is organised according to the book's chapter headings, giving relevant paragraph references where possible. Click on the chapter headings on the left-hand side to access the material relevant to each chapter.
Please email mtdl@3serjeantsinn.com with any comments or suggestions for the updating material.
Headline updates
Update to Chapter 6 (Restraint and Deprivation of Liberty)
Leading deprivation of liberty case
On 9th November 2011 the Court of Appeal gave judgment in the case of Cheshire West and Chester Council v P [2011] EWCA 1257. Link to transcript here. Munby LJ gave the leading judgment, allowing the local authority’s appeal against Baker J’s declaration that P’s circumstances amounted to a deprivation of liberty. The judgment should be read by any practitioner who has to consider this issue. Munby LJ introduced a new approach which is likely to lead to fewer findings of deprivation of liberty, emphasising the importance of identifying the relevant “comparator”. He set out his conclusions at paragraph 102:
“i) The starting point is the “concrete situation”, taking account of a whole range of criteria such as the “type, duration, effects and manner of implementation” of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance.
ii) Deprivation of liberty must be distinguished from restraint. Restraint by itself
is not deprivation of liberty.
iii) Account must be taken of the individual’s whole situation.
iv) The context is crucial.
v) Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty.
vi) In determining whether or not there is a deprivation of liberty, it is legitimate
to have regard both to the objective “reason” why someone is placed and
treated as they are and also to the objective “purpose” (or “aim”) of the
placement.
vii) Subjective motives or intentions, on the other hand, have only limited
relevance. An improper motive or intention may have the effect that what
would otherwise not be a deprivation of liberty is in fact, and for that very
reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are
essentially neutral. At most they merely negative the existence of any
improper purpose or of any malign, base or improper motive that might, if
present, turn what would otherwise be innocuous into a deprivation of liberty.
Thus the test is essentially an objective one.
viii) In determining whether or not there is a deprivation of liberty, it is always
relevant to evaluate and assess the ‘relative normality’ (or otherwise) of the
concrete situation.
ix) But the assessment must take account of the particular capabilities of the
person concerned. What may be a deprivation of liberty for one person may
not be for another.
x) In most contexts (as, for example, in the control order cases) the relevant
comparator is the ordinary adult going about the kind of life which the ablebodied man or woman on the Clapham omnibus would normally expect to
lead.
xi) But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations.
xii) In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or
woman on the Clapham omnibus. The contrast is with the kind of lives that
people like X would normally expect to lead. The comparator is an adult of
similar age with the same capabilities as X, affected by the same condition or
suffering the same inherent mental and physical disabilities and limitations as
X. Likewise, in the case of a child the comparator is a child of the same age
and development as X.”
Link to costs judgment here.
Update to Chapter 6 (Restraint and Deprivation of Liberty)
Part II of the Mental Health Act 1983 provides a comprehensive code for
compulsory admission to hospital for non-compliant incapacitated patients
R (Sessay) v (1) South London & Maudsley NHS Foundation Trust (2) Commissioner of the Police of the Metropolis [2011] EWHC 2617 (Admin) (13th October 2011) is an important case concerning the interplay between the Mental Health Act 1983 (“MHA”), the Mental Capacity Act 2005, the common law and police powers, in the context of an admission to hospital for assessment under s2 MHA.
Link to judgment here.
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Update to Chapter 12 (Permanent Vegetative State), paragraph 12.13
[Cases outside the RCP guidelines]
Withdrawing artificial nutrition and hydration from patient in minimally conscious state?
On 28th September 2011 Mr Justice Baker handed down a landmark judgment in the case of W v M [2011] EWHC 2443 (COP), setting out his conclusion that it was not in the best interests of a 52 year old woman, in a minimally conscious state following a stroke, for artificial nutrition and hydration (“ANH”) to be withdrawn.
M’s family made the application and sought the withdrawal, basing their argument substantially on what they say were M’s wishes and feelings. The application was opposed by the Official Solicitor on behalf of M and by the Primary Care Trust.
Mr Justice Baker decided that the withdrawal was not in M’s best interests.
A number of points are of interest and importance:
- While the case of Bland is authority for the proposition that ANH can lawfully be withdrawn from a patient in a permanent vegetative state (“PVS”), this was the first occasion on which an application for the withdrawal of ANH had been made in respect of a person in a minimally conscious state.
- While the “balance sheet” approach to best interests is not applied in PVS cases, it must be applied in all other cases, including the case of a patient in a minimally conscious state.
- In this case, M had some positive experiences, and the importance of preserving life was the decisive factor in reaching the conclusion that the advantages of continuing ANH outweighed the disadvantages.
- The various statements made by M before her stroke, as recounted by her family, that she would not wish to live a life dependent on others, were to be taken into account, but could not be given significant weight. They were not a clear account of what she would want to happen in these circumstances.
For the future, practitioners should note:
That a decision to withhold or withdraw ANH from a person in PVS or a minimally conscious state must be referred to the Court: see Court of Protection Practice Direction 9E.
Formal assessment (SMART and WHIM) tools play a crucial role in guarding against misdiagnosis (M having initially been diagnosed as being in a vegetative state).
People can record their views about what they would like to happen to them if they find themselves dependent on others in a formal advance decision under the Mental Capacity Act 2005 which, if shown to be valid, the Court will abide by.
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Update to Chapter 3 (Deciding for Others – Adults), paragraph 3.6 [The obligation to treat in accordance with expressed wishes]
Tension over “do not resuscitate” orders
Guardian, 26th August 2011, “Do not resuscitate: final word is with medical staff, whatever patient feels – GMC says there is no obligation to prolong life if doctors think treatment not in patient's best interests”
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Update to Chapter 5 (Going to Court), paragraph 5.28 [Privacy and publicity]
Landmark judgment by Baker J about reporting restrictions and related orders in the Court of Protection
W v (1) M, (2) S, (3) A NHS Primary Care Trust, (4) Times Newspapers Limited [2011] EWHC 1197 (COP), Baker J, 12th May 2011
The case has generated much media interest, eg:
Guardian, 13th May 2011, “Twitter and Facebook publication banned for first time in injunction; High court judge issues order that specifically mentions social media as well as digital, TV, radio and print”
http://www.guardian.co.uk/media/2011/may/13/twitter-and-facebook-publication-banned-injunction?CMP=twt_fd
The Times, 13th May 2011, “Victory for Times as record-breaking injunction is lifted”
Link for those with paid access: http://www.thetimes.co.uk/tto/law/article3018281.ece
James Berry from 3 Serjeants’ Inn represented the Primary Care Trust.
Link to judgment
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Update to Chapter 3 (Deciding for Others - Adults), paragraph 3.13 [Determination of best interests]
Added 7.3.11 – Consultation with family members may be required to meet both s4(7) MCA and public law requirements
In R (W) V Croydon London Borough Council, 3rd March 2011, the High Court held that a local authority had acted unlawfully by deciding to transfer a young adult who lacked capacity to a new placement without proper consultation with his parents, as required by the National Assistance Act 1948 (Choice of Accommodation) Directions 1992.
Ouseley J gave an extempore judgment and the transcript is awaited.
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Update to Chapter 6 (Restraint and Deprivation of Liberty), paragraphs 6.31-6.36 [What is 'deprivation of liberty'?] & 6.37 [Indentifying a deprivation of liberty]
P (otherwise known as MIG) and Q (otherwise known as MEG) v Surrey County Council [2011] EWCA Civ 129
In a long-awaited judgment (following a hearing on 21st October 2010) the Court of Appeal has upheld the decision of Parker J that two learning disabled teenage girls, one living in a foster home, the other in a care home, were not deprived of their liberty under Article 5 ECHR
.
Parker J’s judgment was controversial, viewed by some as a watering down of the protection which Article 5 should provide. It was accused of continuing a “dangerous conflation between the question of the existence of objective deprivation and the separate issue of justification of any deprivation by reference to the person’s best interests” (commentary on Mental Health Law Online, http://www.mentalhealthlaw.co.uk/Re_MIG_and_MEG_(2010)_EWHC_785_(Fam)
The Court of Appeal has upheld most of the “magisterial analysis” in Parker J’s “excellent judgment”.
In his leading judgment, Wilson LJ disagreed with Parker J’s observation that a person’s happiness is relevant to whether she is deprived of her liberty. He considered that the following factors were relevant:
- whether the person objects to the confinement
- the use of medication
- the purpose of the arrangements (although not whether the purpose is to further the person’s best interests)
- the relative normality of the living arrangements
Smith and Mummery LJJ gave separate concurring judgments. Smith LJ made the point that the person’s previous arrangements were not relevant to the question of whether the present arrangements engage Article 5. In other words, they thought that it was impermissible to reason that if a person had greater freedom in her current arrangements than previously, this enhancement was relevant to the question whether the current arrangements amount to a deprivation of liberty or not. Mummery LJ agreed that there were dangers in such an approach.
The Court’s judgment is carefully reasoned. However, it is unlikely to satisfy those who found fault with Parker J, not least because it seeks to persuade its readers that it has entirely ignored what the consequences would have been of departing from Parker J’s finding (namely a backlog of pending court deprivation of liberty reviews, unserviceable by both the Court of Protection and the Official Solicitor). Even allowing for the fact that we require and expect judges to ignore legally irrelevant points even if they dominate all thoughts about a case, critics will find it hard to believe that the point which the Court expressly ignores early in its judgment has not influenced its reasoning. Conversely, supporters will argue that the Court’s reasoning does stand up to analysis, not least because Article 5 was surely never intended to apply to carers’ best efforts to provide as normal a life as possible for someone who lacks capacity.
Link to transcript
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Update to Chapter 2 (Consent – Adults), paras 2.2-2.8 re capacity; Chapter 5 (Going to Court), para 5.2 (Courts with jurisdiction to deal with medical treatment cases)
Added 26.11.10 – Case of LBL – capacity and inherent jurisdiction
LBL v RYJ and VJ [2010] EWHC 2665 CoP, 22.9.10
This case concerned a dispute over whether an 18 year old suffering with epilepsy associated with a brain injury and significant learning difficulties lacked capacity to decide about residence and contact. Macur J determined that the presumption of capacity was not displaced noting the woman’s ability to process decision-making was “mixed with a cocktail of conventional adolescent rebellion”.
The local authority therefore sought orders under the inherent jurisdiction that made determinations about RYJ’s welfare and her finances. Macur J stated that whilst she did not doubt the availability of the inherent jurisdiction to supplement the protection afforded by the Mental Capacity Act 2005 for those who, whilst ‘capacitous’ for the purposes of the Act, were ‘incapacitated‘ by external forces – whatever they may be - outside their control from reaching a decision. However, the inherent jurisdiction was not available to displace autonomy in decisions. She therefore rejected the contention of the local authority that the inherent jurisdiction of the court could be used in the case of a capacitous adult to impose a decision upon him/her whether as to welfare or finance. What the court could do via its inherent jurisdiction was facilitate the process of unencumbered decision-making by those who they have determined have capacity free of external pressure or physical restraint in making those decisions.
Link to transcript
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Update to Chapter 3 (Deciding for Others – Adults), para 3.13 (Determination of best interests)
Added 26.11.10 – Important COP judgment on the “best interests” test
In In the matter of G (TJ) ([2010] EWHC 3005 (COP), 19.11.10), Mr Justice Morgan gave comprehensive consideration to the “best interests” test under the Mental Capacity Act 2005 and carried out a review of other COP authority on this topic. In particular he considered how to determine P’s best interests when contemplating a step which was of no direct benefit to P, including how the Court should take into account what P’s wishes were likely to have been. On the facts of the case he decided that it was in Mrs G’s best interests for her deputy to make maintenance payments from her funds to her adult daughter.
Link to transcript
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Update to Chapter 5 (Going to Court), para 5.3 (The jurisdiction of the Court of Protection)
Added 26.11.10 – Charles J decides COP has power to award HRA damages
In YA(F) v A Local Authority & Others ([2010] EWHC 2770 (Fam), 2.9.10), Mr Justice Charles decided that the Court of Protection has power to award damages under the Human Rights Act 1998. This is a significant judgment on the jurisdiction of the Court of Protection.
Link to transcript
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Update to Chapter 6 (Restraint and Deprivation of Liberty), para 6.22 (Practical issues)
Added 26.11.10 – Judgment available in Re D case concerning restraint for medical treatment
The transcript of the judgment in the case of Re D ([2010] EWHC 2535 (COP), hearing date 29.9.10, judgment date 14.10.10) is now available (previously referred to as an update to Chapter 5 focusing on the publicity aspect). D was a 69 year old woman with a long history of schizophrenia who lacked capacity to make decisions concerning her medical treatment. She had a prolapsed uterus and needed a hysterectomy. In the circumstances, a lengthy period of sedation would be required. Mrs Justice Macur sanctioned the proposed care plan, even if it were to amount to a deprivation of liberty.
Bridget Dolan represented D by her litigation friend the Official Solicitor.
Link to transcript
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Update to Chapter 6 (Restraint and Deprivation of Liberty), para 6.22 (Practical issues)
Added 26.11.10 – Another restraint / medical treatment case
Mrs Justice Hogg authorised the treatment and possible restraint of a woman known as SB. The case was heard in public under COP Practice Direction 9E. It is not understood that a transcript has been prepared. See the Telegraph’s news item here:
http://www.telegraph.co.uk/health/healthnews/8074306/Judge-tells-doctors-they-can-enforce-treatment-on-mentally-ill-woman.html
Amy Street represented SB by her litigation friend the Official Solicitor.
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Update to Chapter 5 (Going to Court), para 5.2 (Courts with jurisdiction to deal with medical treatment cases)
Added 26.11.10 – President makes High Court orders to protect adults with capacity
A Local Authority v DL, RL and ML ([2010] EWHC 2675 (Fam), 14.10.10), Sir Nicholas Wall, President of the Family Division
Mr and Mrs L were an elderly married couple who lived with their son DL. Both Mr and Mrs L appeared capable of deciding what their relationship with DL should be and in particular whether he should live with them, and capable of taking proceedings themselves.
The local authority was concerned about aggressive conduct by DL to his parents and wished to take steps to protect Mr and Mrs L. The local authority made an application to the Court, without notice to DL, asking the Court to make orders not excluding DL from the house but restraining him from acting unlawfully. The question was whether the Court had any jurisdiction to make orders against DL which were protective of Mr and Mrs L.
The local authority advanced two bases upon which it said the Court had jurisdiction.
First, the inherent jurisdiction of the High Court to protect vulnerable adults. The local authority relied heavily on Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942) Fam [2006] 1 FLR 867.
The President stated as follows at paragraph 20: “It is, of course, the case that SA was incapable of taking proceedings, even though, on the evidence, she had the capacity to understand the general concept of marriage – see paragraphs [12] and [16] of the judgment. For this reason alone, I am of the view that the present case involves an extension of the inherent jurisdiction and that it would be possible - if one wished – to distinguish the instant case from Re SA. Nonetheless. I have come to the conclusion that Re SA provides a jurisdictional basis for the exercise of the inherent jurisdiction on the facts of this case.”
Second, s222 of the Local Government Act 1972, which the President addressed in the alternative. This provision empowers a local authority to institute proceedings if considered expedient for the promotion of the interests of the inhabitants of their area. At paragraph 30 the President stated as follows: “In my judgment, LGA 1972 section 222 does arguably in both the senses relied upon found jurisdiction for the type of injunctive relief here claimed. At the same time, it does not seem to me that section 222 adds greatly to the arguments advanced under the inherent jurisdiction. If the facts warrant an injunction under the inherent jurisdiction, it seems to me that they also warrant action under LGA 1972 section 222. In other words, as I see the case, the two stand or fall together.”
The judge made the order sought by the local authority. It appears that the judge intended the relevant parts of the order to be attached to the judgment, but we have not yet tracked them down.
Link to transcript
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Update to Chapter 5 (Going to Court), para 5.58 (First hearing and subsequent directions hearings)
Added 26.11.10 – Case management judgment in medical treatment case
Re AVS ([2010] EWHC 2746 (COP), hearing 25.10.10, judgment 2.11.10), Sir Nicholas Wall, President of the Court of Protection
This was a directions hearing in a medical treatment case. The patient, AVS, had CJD. According to a consultant neurologist he had no evidence of awareness of self or environment, although his family thought he responded to stimuli. His brother issued an application in the Court of Protection. He had previously been given a drug, Pentosan Polysulphate (PPS). He asked the Court to decide whether it was in AVS’s best interests for the pump administering the drug (which had malfunctioned) to be replaced and whether it was in his best interests then to continue to receive PPS.
The President decided that AVS’s brother did not have the necessary level of objectivity to be AVS’s litigation friend.
The President then proceeded to make robust case management directions, dealing with the future of the case in the light of the brother’s indication that a Dr P was willing to take over his brother’s case. While the President’s considerations were fact-specific, his judgment may be of interest to practitioners, not least because it is unusual to see a judgment relating to case management directions of this type.
Link to transcript
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Update to Chapter 6 (Restraint and Deprivation of Liberty), paras 6.38 (Authorising a deprivation of liberty) and 6.41-6.44 (The DOLS procedure)
Added 25.10.10 – Significant Deprivation of Liberty judgment
On 22.10.10 Charles J handed down judgment in the case of A County Council v MB, JB and A Residential Home [2010] EWHC 2508 (COP).
The central issue was “the legality of the deprivation of MB’s liberty between (a) the expiration of a standard authorisation given under Schedule A1 MCA 2005 and expressed to come into force on Monday 1 March 2010 and to remain in force until Monday 29 March 2009, and (b) the making of an order by the court on 13 April 2010 under s. 16 MCA which authorised her deprivation of liberty at the third Respondent (the Residential Home).”
MB sought a declaration that from the expiry of that standard authorisation (which was accepted on her behalf to be at midnight on 29 March 2010) until the making of the order on 13 April 2010 she was unlawfully deprived of her liberty at the Residential Home, in breach of her Article 5 rights.
The Applicant County Council asserted that there has been no breach of MB’s Article 5 rights for the following reasons:
i) they were authorised to deprive MB of her liberty by s. 4B MCA 2005, alternatively
ii) the deprivation of liberty was authorised by the second urgent authorisation, and
iii) in any event, there was no arbitrary deprivation of liberty and therefore there was no breach of MB’s Article 5 rights.
The court gave important guidance, including on issues relating to the duration and timings of authorisations of deprivation of liberty and the use of s4B MCA.
Bridget Dolan was instructed on behalf of the Official Solicitor as litigation friend to MB.
Link to transcript
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Update to Chapter 6 (Restraint and Deprivation of Liberty), para 6.39 (Court authorisation)
Added 25.10.10 – Guidance on practice “where someone lacking capacity or under a disability requires to be removed from premises with the help of the Police”.
Practitioners should be aware of the Family Division judgment of Coleridge J of 8.4.09.
At paragraphs 31 and 32, Coleridge J endorsed the following guidance and indicated that the President of the Family Division and Court of Protection approved it.
“In the event that it is expected that the assistance of the Police may be required to effect or assist with the removal of a vulnerable/ incapacitated adult (“P”) which the Court is being asked to authorise, the following steps should generally be taken:
(1) the Local Authority/NHS body/other organisation/person (the Applicant) applying to the Court for an authorisation to remove P should, in advance of the hearing of the Application, discuss and, where possible, agree with the Police the way in which it is intended that the removal will be effected, to include, where applicable, the extent to which it is expected that restraint and/or force may be used and the nature of any restraint (for example, handcuffs) that may be used;
(2) the Applicant should ensure that information about the way in which it is intended that removal will be effected is provided to the Court and to the litigation friend (in cases where a person has been invited and/or appointed to act as P’s litigation friend) before the Court authorises removal. In particular, the Court and the litigation friend should be informed whether there is agreement between the Applicant and the Police and, if there is not, about the nature and extent of any disagreement;
(3) where the Applicant and the Police do not agree about how removal should be effected, the Court should give consideration to inviting/directing the Police to attend the hearing of the Application so that the Court can, where appropriate, determine how it considers removal should be effected and/or ensure that any authorisation for removal is given on a fully informed basis.”
Link to transcript
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Update to Chapter 5 (Going to Court), paras 5.28 and 5.57 (Privacy and publicity in the Court of Protection and High Court respectively)
Added 21.10.10 – Importance of form of injunctions
In PM v KH and HM [2010] EWHC 1579 (Fam), 24th June 2010, Munby LJ, sitting as a judge of the Family Division, considered the form and purpose of parts of court orders relating to anonymity and publication. He emphasised that provisions which were intended to prevent publication of particular matters would not have injunctive effect unless they were properly expressed as injunctions.
He stated at paragraph 25: “The practical message is, I hope, clear. If it is desired to have an order enforceable, if the need arises, as an injunction it should be drafted in the way in which injunctions are usually drafted and, moreover, in terms which are clear, precise and unambiguous.”
Practitioners should note that this was a case in the High Court rather than the Court of Protection. The Court of Protection rules therefore did not apply. Practitioners may need to give thought to whether any different considerations apply in the Court of Protection.
Link to transcript
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Update to Chapter 6 (Restraint and Deprivation of Liberty), paras 6.39-6.40 (Court authorisation)
Added 21.10.10 – LSC funding in relation to Deprivation of Liberty court reviews
The transcript has become available of a judgment of Holman J in the Court of Protection on 19th November 2009, NCC v KM and SM.
Holman J made an order which included authorising a deprivation of liberty in KM’s best interests. He provided for annual reviews by a district judge of the Court of Protection. Holman J recognised that it was important for KM to be represented in the process of such reviews by his litigation friend the Official Solicitor and for KM’s mother to take part, with the effect that the Official Solicitor and KM’s mother would need to be involved in the case on a long term basis. This raised a potential difficulty relating to the public funding of both parties. As the judge noted, “the scheme of public legal funding is such that some endpoint has to be applied to the scope of any current certificate.” This was a ‘final’ hearing; and the direction for a detailed assessment of the publicly funded costs meant that the existing certificates would come to an end. The judge did not consider he had any power to require the grant of new certificates for the proposed purpose of annual reviews, or to dictate that any item of expenditure is a proper cost to be incurred for the purpose of an annual review. However, the Judge did what he could to facilitate the future involvement of the parties requiring public funding by stating in the order that “in the opinion of the court, the preparation of evidence or submissions for the purpose of annual reviews would be a proper cost to be incurred pursuant to new certificates issues by the Legal Services Commission to KM and indeed, if she wishes to participate, his mother”.
Link to transcript
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Update to Chapter 5 (Going to Court), para 5.23 (The court’s powers to make medical treatment decisions)
Added 21.10.10 – Court of Appeal concerning interim measures under s48 MCA
The transcript has become available of a Court of Appeal judgment in relation to a Court of Protection decision, FA v Mr A, SA and the LBC [2010] EWCA Civ 1128, 19th August 2010. Munby LJ sat to consider permission and then proceeded to consider the substantive appeal on the point in relation to which he granted permission. The appeal concerned interim measures taken under s48 MCA.
Link to transcript
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Update to Chapter 14 (End of Life)
General update to chapter
End of life decision-making guidance
GMC Guidance for doctors, “Treatment and care towards the end of life: good practice in decision making” came into force on 01.07.10. This guidance replaces “Withholding and withdrawing life-prolonging treatments” (2002) and expands on the guidance in “Consent, patients and doctors making decisions together”.
For more information please click here
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Update to Chapter 2 (Consent - Adults)
Update to paragraph 2.5 [Definition of capacity and its assessment; Weighing information as part of a decision-making process]
The developing case law on capacity to consent to sexual relations etc
D County Council v LS [2010] EWHC 1544 (Fam)
(link to source)
Bridget Dolan of 3 Serjeants' Inn was appointed as the Advocate to the Court in LS.
Mr Justice Wood revisited his decision ([2009] EWHC 123 (Fam)) that LS had capacity to consent to sexual relations in the light of the House of Lords decision in R v C [2009] 1WLR 1786.
In his initial decision Wood J had adopted the pre-MCA approach taken by Munby J (as he then was) in the context of the inherent jurisdiction of the High Court. Munby J had held that the test for capacity to consent to sexual relations was issue specific and not person (partner) specific (see MM v Local Authority X [2007] EWHC 2002 (Fam)).
In R v C, a decision involving the criminal law, Baroness Hale had stated that she was "far from persuaded" that the views previously expressed by Munby J in the civil context were correct.
Wood J held that (a) there should in principle be a significant degree of conformity in the tests for establishing capacity in both the civil and the criminal courts (b) that the approach applied in R v C was consistent with s3 MCA, and hence (c) the MCA statutory scheme should now be applied in preference to the previous civil case law; (d) capacity to consent to sexual relations was person and situation-specific in so far as there may be person and/or situation specific factors which impeded or undermined a person's capacity to make a choice
In relation to the test for capacity to consent to contraception, see A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (link to source)
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Update to Chapter 3 (Deciding for Others - Adults)
Update to paragraph 3.9 [The Mental Capacity Act 2005]
The developing case law on deputies:
As to whether the appointment of a deputy is appropriate, see MCA s16(4) as considered in:
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G v E, Manchester City Council & F [2010] EWHC 2512 (COP) (Fam). Amy Street represented E by his litigation friend the Official Solicitor. Baker J considered in detail the principles relevant to the decision whether to appoint a deputy, in particular s16(4) MCA. Link to source.
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Re P [2010] EWHC 1592 (Fam), in particular paragraph 8. This is the case of international pianist Derek Paravicini, also the subject of the decisions reported as Independent News Media v A concerning press attendance in the COP, [2010] EWCA Civ 343 (link to source)
In relation to deputies see also:
EG v RS, JS and BEN PCT, 3rd August 2010 (link to source)
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Update to Chapter 3 (Deciding for Others - Adults)
Update to paragraph 3.13 [Determination of best interests], footnote 3
Developing case law on the weight to be given to P's wishes
In the matter of P must be read subject to Re M, ITW and Z [2009] EWHC 2525 (Fam). See in particular paragraphs 31-6, setting out observations in relation to taking into account P's wishes and the general scheme of ss1-4 MCA.
For an example of a case in which an individual's wishes could not be given considerable weight (because of her failure to understand her circumstances) see DCC v EH [2009] EWHC 784 (Fam).
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Update to Chapter 4 (Deciding for Others - Children)
LA v SB, AB and MB (A child by his guardian David Duncan) [2010] EWHC 1744 (Fam). This case considered the proper limitations of the court's role when there was no proper dispute as to a child undergoing surgery. (Further details)
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Update to Chapter 5 (Going to Court)
Update to paragraph 5.28 [Privacy and publicity]
The developing case law on privacy and publicity in the Court of Protection
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In G v E v Manchester City Council v F [2010] EWHC 2042 (Fam), Baker J permitted the naming of Manchester City Council as the local authority concerned in the case, following an application by the Press Association. Amy Street of 3 Serjeants' Inn represented E by his litigation friend the Official Solicitor. (Link to source)
See the following press coverage:
Channel 4
Guardian
Guardian 2
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Update to Chapter 5 (Going to Court)
Update to paragraph 5.28 [Privacy and publicity]
Public hearings in serious medical treatment cases
Bridget Dolan of 3 Serjeants' Inn represented "D" in a serious medical treatment case which caught the Daily Mail's attention: 30th September 2010, "Judge rules mentally ill woman can be sedated for SIX days so doctors can perform life-saving surgery she doesn't want" (30.09.10) (Further details)
To practitioners in the field its subject matter (a serious medical treatment decision in which the use of restraint is required) is perhaps less notable than the fact that it begs the question how many serious medical treatment cases are being heard in private (unlike this one), contrary to the requirements for a public hearing in Practice Direction 9E?
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Update to Chapter 5 (Going to Court)
Update to paragraph 5.21 [Sources of procedural rules and guidance]
Pre-MCA case law may be relevant
See RT v LT and another [2010] EWHC 1910 (Further details)
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Update to Chapter 5 (Going to Court)
Update to paragraph 5.23 [The court's powers to make medical treament decisions]
International jurisdiction of the Court of Protection
See the case of Re MN [2010] EWHC 1926 (Fam) for consideration by the Court of Protection of matters relating to the enforcement of protective measures taken in foreign courts. (Further details)
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Update to Chapter 5 (Going to Court)
Update to paragraph 5.36 [First hearing and subsequent directions hearings]
Case management decisions as to permission for expert evidence
See City of Westminster v FS, 9th September 2009.
(link to source)
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Update to Chapter 5 (Going to Court)
Update to paragraph 5.37 [Final Hearings]
McKenzie friends
See HBC v LG [2010] EWHC 1527 (Fam)
Amy Street represented LG by her litigation friend the Official Solicitor. (details)
See subsequent Practice Guidance:McKenzie Friends (Civil and Family Courts)
(Link to source)
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Update to Chapter 3 (Deciding for Others - Adults)
Update to paragraph 3.13 [Determination of best interests]
and
Update to Chapter 6 (Restraint and Deprivation of Liberty)
Update to paragraphs 6.39-6.40 [Court authorisation]
'Best interests' test is Article 5 compliant in the deprivation of liberty context
In G v E v Manchester City Council v F [2010] EWCA Civ 822, the Court of Appeal rejected G's argument that Article 5 established distinct threshold conditions which had to be satisfield before a best interests assessment can be carried out in relation to someone who lacks capacity to decide matters relating to care and residence etc. In other words, the best interests regime under the MCA is Article 5 compliant.
Amy Street represented E by his litigation friend the Official Solicitor.(link to source)
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Updates to Chapter 6 (Restraint and Deprivation of Liberty)
Updates to paragraphs 6.31-6.36 [What is 'deprivation of liberty'?] & 6.37 [Indentifying a deprivation of liberty]
Two important cases fuel continuing debate about "how much weight should be put on a benevolent puropse" as the MTDL authors trailed in paragraph 6.37.
In A Local Authority v A; A Local Authority v C [2010] EWHC 978 (Fam), Munby J (as he then was) decided that neither (i) A, a child (whose case he considered under the inherent jurisdiction of the High Court) nor (ii) C, an adult (whose case he considered in the Court of Protection) were deprived of their liberty. Both were cared for in the family home by parents who locked their respective bedroom doors at night as the only practicable way of managing their behavioural problems and disturbed sleep patterns. (details)
In Surrey County Council v MIG and MEG [2010] EWHC 784 (Fam), Parker J considered the case of two girls aged 17 and 18, with moderate to severe learning disability. MIG was living with her former respite carer in the carer's family home. MEG lived in a small group home with four residents. Parker J decided that neither was deprived of her liberty.
Further information
Other developing case law on indentifying a deprivation of liberty
See:
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G v E v A Local Authority v F [2010] EWHC 621 (Fam) (Link to source)
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The PCT v P, AH and a Local Authority, 21st December 2009
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BB v AM & Others [2010] EWHC 1916 (Fam) (Link to source)
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Updates to Chapter 6 (Restraint and Deprivation of Liberty)
Update to paragraphs 6.39-6.40 [Court authorisation]
Court reviews of deprivation of liberty
In the matter of BJ [2009] EWHC 3310 (Fam) is the post-MCA follow-up in the case of Salford City Council v GJ [2008] 2 FLR 1295 concerning court reviews of deprivations of liberty.
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Updates to Chapter 6 (Restraint and Deprivation of Liberty)
Update to paragraphs 6.45-6.48 [MCA or MHA?]
Developing case law on "ineligibility"
In addition to GJ v The Foundation Trust [2009] EWHC 2972 (Fam) (MTDL paragraph 6.45) and A Primary Care Trust v TB [2009] EWHC 1737 (Fam) (paragraph 6.47), see;
(Further information)
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Updates to Chapter 6 (Restraint and Deprivation of Liberty)
Update to paragraph 6.9 [Restraint authorised under the MCA]
26/05/10: Court of Protection case declaring restraint in incapable patient's best interests
The case of DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam) concerned a 55 year old woman (PS) who had uterine cancer and lacked capacity to decide about her medical treatment. Sir Nicholas Wall, President of the Court of Protection, found that it was in her best interests to undergo an operation to treat the condition. The President stated further at paragraph 19: "I am further satisfied, given her hospital and needle phobia, that it may well be necessary to sedate PS in order to convey her to hospital, and that the risks of sedation in these circumstances have been appropriately addressed by the Trust. The need for such sedative treatment will only arise if persuasion fails, and I am accordingly satisfied that it is necessary for the trust to authorise such treatment as being in PS's best interests, and to use force if necessary to sedate her and convey her to hospital."
(Link to source)
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Update to Chapter 5 (Going to Court)
Paragraph 5.23 [The court's power to make medical treatment decisions]
and
Update to Chapter 6 (Restraint and Deprivation of liberty) generally
01/04/10: Second Court of Protection case declaring breach of human rights - wide-ranging judgment on deprivation of liberty and other issues
In G v E v A Local Authority v F [2010] EWHC 621 (Fam), handed down on 26/03/10, and subsequently published in anonymised form, Mr Justice Baker gave a wide-ranging judgment following an interim hearing in a welfare case. A local authority had removed E, a 19 year old man with a severe learning disability from his adult placement carer, F, without giving any or any adequate consideration to his family life and without a Court of Protection application or authorisation under the Deprivation of Liberty Safeguards. Mr Justice Baker addressed the following points of wider interest:
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He made declarations that Articles 5 and 8 had been breached.
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He addressed issues concerning interim authorisation by the court of a deprivation of liberty.
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He heard argument on the admissibility of statements made by an incompetent person. He agreed with and endorsed the analysis of McFarlane J in Re SA (see below) as amplified by the Official Solicitor in argument.
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He was asked to consider issues relating P's tenancy agreement, given that he had no capacity to enter into it; and issues relating to whether his supported living arrangements should properly be described as a "care home" under the Deprivation of Liberty Safeguards and the Care Standards Act 2000, but made no findings on these points at this interim stage of the proceedings.
Amy Street represented the Official Solicitor as E's litigation friend.
Link to judgment here
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Update to Chapter 5 (Going to Court)
Paragraph 5.23 [The court's power to make medical treatment decisions]
15/03/10: Court of Protection declares breach of human rights
A Local Authority v MM (HHJ Moir, 08/03/10) provides an example of the Court of Protection declaring that P's human rights (in this case Article 8) have been breached. The case concerns welfare (contact), rather than medical issues, but is an interesting authority in principle for the development of the jurisdiction of the Court of Protection.
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Update to Chapter 13 (Treatment of suicidal patients)
Paragraphs 13.6-13.15 [concerning Suicide Act 1961 and DPP's interim guidance etc]
04/03/10: 3 Serjeants’ Inn’s commentary on the DPP’s assisted suicide prosecution policy
On 25th February 2010 the DPP published his eagerly awaited policy in relation to the prosecution of those who assist the suicide of another: (detail)
It lists 22 individual ‘public interest’ factors - 16 in favour of prosecution and 6 against. Those features against prosecution include actions arising wholly out of compassion; a minor involvement in the cause of the suicide; evidence that the suspect sought to dissuade the person from suicide; subsequent reporting to the police and full co-operation thereafter.
Predictably those factors favouring prosecution focus on the relationship between the parties; the age and capacity for understanding of the person committing suicide; whether or not the suspect had other motives for assisting (not wholly out of compassion); and the degree of the suspects involvement in the death.
The publication of such guidelines has attracted criticisms that the law is being altered without the involvement of Parliament and that it is unprecedented for the CPS to set out in detail how people can commit a crime without being charged. However, the guidelines do not suggest that the attitude to assisted suicide is being relaxed.
In fact one can envisage more prosecutions not fewer. Certainly they provide clear warning signs to the medical profession. Whilst it may be true that in most cases members of the medical profession would act wholly out of compassion their position of influence and likely close association with the death of any patient (friend or family member) mark them out as vulnerable to prosecution under these guidelines.
This field will continue to develop - along with ‘mercy killings’ - and one can expect controversial prosecutions and calls for legislative intervention.
Richard Partridge
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Update to Chapter 13 (Treatment of suicidal patients)
Paragraphs 13.6-13.15 [concerning Suicide Act 1961 and DPP's interim guidance etc]
01/03/10: Director of Public Prosecution's final guidance on assisted suicide published
"Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide" came into effect on 25/02/10 and supersedes the interim police issued on 23/09/10: (details)
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Update to Chapter 5 (Going to Court)
16/02/10: Court of Protection (High Court level - McFarlane J) consideration of matters of procedure and law:
London Borough of Enfield v (1) SA (by OS as Litigation Friend) (2) FA (3) KA
[2010] EWHC 196 (Admin), 09/02/10
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Update to Chapter 13 (Treatment of suicidal patients)
Paragraphs 13.6-13.15 [concerning Suicide Act 1961 and DPP's interim guidance etc]
01/02/10: Terry Pratchett's call for assisted suicide "tribunals" follows two contrasting criminal trials
Author and early-onset Alzeihmer's sufferer Terry Pratchett delivers the 34th annual Richard Dimbleby lecture, "Shaking Hands with Death", on 01/02/10 at 22.35 on BBC1. Link to programme details here
Panorama, "I helped my daughter die", broadcast earlier in the evening at 2030, features Kay Gilderdale, who was acquitted on 25/01/10 of murdering her daughter Lynn, who suffered from ME. Kay Gilderdale admitted aiding and abetting Lynn's suicide and was given a 12 month conditional discharge. Link to programme details here
BBC news, "ME mother Kay Gilderdale backs suicide law calls": details
On 26/01/10 the Director of Public Prosecutions issued a statement defending the decision to prosecute Kay Gilderdale: details
Kay Gilderdale's case contrasts with that of Frances Inglis, who on 20/01/10 was convicted of murdering her brain-damaged son Thomas by injecting him with heroin. She had said during the trial, "I did it with love in my heart, for Tom, so I don't see it as murder."
BBC news,"Mother gets life for heroin death" details
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Update to Chapter 3 (Deciding for Others - Adults)
Update to Chapter 3 (Deciding for Others - Adults)
Paragraph 3.13 - Determination of best interests
21/07/09: Observations of Court of Protection Senior Judge on the duty to consult under s4(7)(b) Mental Capacity Act 2005
In the context of a decision about an Enduring Power of Attorney, the Senior Judge made the following point of general application:
'The first line of section 4(7) provides that any best interests decision-maker 'must take into account, if it is practicable and appropriate to consult them, the views of' various categories of individuals. In my judgment, where any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P's best interests, and it would be neither practicable nor appropriate to embark on that process in the first place.' details
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Medical Treatment: Decisions and the Law
The Mental Capacity Act in Action
Published by Bloomsbury Professional
“[This book] is very strongly recommended… I also suggest that it should take its place on the shelves of those who are involved less directly with medical law. We would all benefit from authoritative instruction as to what will be expected on the courtroom floor rather than in the academic classroom.” Professor J K Mason, University of Edinburgh, SCOLAG Journal 2003 (review of previous edition)
Medical Treatment: Decisions and the Law is a practical guide written by lawyers involved in treatment decisions on a weekly basis. This second edition will prove invaluable for lawyers, medical professionals, NHS bodies, local authorities, patients, their families and all others involved in their care.
Since Medical Treatment: Decisions and the Law was first published in 2001, the law has changed dramatically. This fully revised second edition explains the provisions of the Mental Capacity Act 2005 and the increased influence of the Human Rights Act 1998. New chapters extensively review the procedural regimes in the Court of Protection as well as in the High Court and under the Article 5 ECHR ‘Deprivation of Liberty Safeguards’. All of the recent key cases are considered, including the life and death cases of Burke, Pretty, Purdy, Wyatt and Baby RB.
Medical Treatment: Decisions and the Law provides a compendious guide to the general principles for treatment decisions (including ‘living wills’) and the approach should a treatment dilemma reach court. Fully updated specialist chapters then address the particular problems the authors have dealt with in the High Court and Court of Protection including cases involving sterilisation, abortion, caesarean sections, feeding, religious objections to treatment, permanent vegetative state and suicide. New chapters consider end of life decisions and human tissue and organ donation. Extensive appendices set out the key precedents, materials and sample forms.
Christopher Johnston, the editor, has acted for patients and hospitals in medical ethics cases over the last 15 years. He appeared in Re M & Re H (Bland decision compatible with Human Rights Act); B v Croydon HA (forcefeeding under Mental Health Act); and Orange (duty to protect prisoners from suicide).
3 Serjeants’ Inn has provided a team of specialist authors. Barristers in this leading medical law chambers have been involved in the most important medical treatment decisions including In Re F (sterilisation), Bland, Re MB (caesarean section), Re A (conjoined twins), Burke (withdrawal of nutrition and hydration), Wyatt and Baby RB.