Chapter 5: Going to Court

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 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 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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Updates to paragraph 5.28 [Privacy and publicity]

The developing case law on privacy and publicity in the Court of Protection

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

The Guardian

The Guardian second article

The Court of Appeal decision in Independent News & Media v A is reported at [2010] EWCA Civ 343.

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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: 30^th 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)

Press article

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 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

http://www.bailii.org/ew/cases/EWHC/Fam/2010/1910.html

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Update to paragraph 5.23 [The court’s powers to make medical treatment 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. Link to source

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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, 9^th September 2009.

Link to source

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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.

Link to source 

See subsequent Practice Guidance: McKenzie Friends (Civil and Family Courts)

Link to source

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Update to 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.

16/02/10: Court of Protection (High Court level - McFarlane J) consideration of matters of procedure and law:

• hearsay evidence - in general and from incompetent witnesses
• police interviews of P - approach to capacity; whether need to inform court and parties; disclosure of "Achieving Best Evidence" interview

London Borough of Enfield v (1) SA (by OS as Litigation Friend) (2) FA (3) KA 

[2010] EWHC 196 (Admin), 09/02/10 

Hyperlinks

www.hmcourts-service.gov.uk/cms/14705.htm may be the unamended version.
 
Paragraph 5.21 - Footnote 7:
http://www.publicguardian.gov.uk/forms/information-professionals.htm
 
Paragraph 5.21 - Footnote 8:
http://www.publicguardian.gov.uk/forms/other-orders-cop.htm – although the list of judgments here should not be presumed to be exhaustive.
 
Paragraph 5.23 - Footnote 4:
Re F, Court of Protection case no 11649371, 28th May 2009(http://www.publicguardian.gov.uk/docs/judgement-re-f-28-may-2009.pdf) per HHJ Hazel Marshall QC at paras 25 and 26.
 
Paragraph 5.41 - Footnote 3:
s 8 Children Act 1989: ‘an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child’. For a s 8 application there is a standard form (C100) at http://www.hmcourts-service.gov.uk/courtfinder/forms/C100_1108.pdf but, if s 8 is being relied on at all, it would be usual to issue in the inherent jurisdiction as well, and therefore simply issue one originating summons to cover both jurisdictions.
 
Paragraph 5.43 - Footnote 3:
http://www.hmcourts-service.gov.uk/cms/479.htm
 
Paragraph 5.51 - Footnote 1:
Practice Note (Official Solicitor: Appointment in family proceedings), 2 April 2001 [2001] 2 FLR 155 (APPENDIX 5.14) and an article about the Official Solicitor’s role in children cases on the Official Solicitor’s website at http://www.officialsolicitor.gov.uk/docs/parentsnetworkarticle.doc.
 
Paragraph 5.57 - Footnote 1:
...The case of RB (a baby with a severe neuro-muscular disorder whose doctors and mother supported the withdrawal of treatment, but whose father objected to this course of action until some way through the hearing when agreement was eventually reached) was also heard before McFarlane J in private with media attendance under r 10.28 in November 2009. http://www.bailii.org/ew/cases/EWHC/Fam/2009/3269.html.
 
Paragraph 5.57 - Footnote 4:
See Practice Direction: ‘Attendance of Media Representatives at Hearings in Family Proceedings’, dated 20th April 2009, 
 
Paragraph 5.57 - Footnote 7:
President’s Practice Direction (Applications for Reporting Restriction Orders) dated 18 March 2005, APPENDIX 5.12; see also application form here

 
Appendix 5.2:
Note r 61(2) of the Court of Protection Rules 2007: ‘The appropriate forms must be used in the case to which they apply, with such variations as the case requires, but not so as to omit any information or guidance which any form gives to the intended recipient.’ The forms are available on the Court Service website. Go to– www.hmcourts-service.gov.uk and select ‘Forms and Guidance’, or go direct to–

www.hmcourts-service.gov.uk/HMCSCourtFinder

Note that selecting ‘Court of Protection’ in the ‘Work Type’ box on the website does not produce all the Court of Protection forms. The better approach is to put ‘COP’ in the ‘Form Title/Leaflet Title’ box. The title of the forms all have the prefix ‘COP’ (for Court of Protection) and a number. They are often referred to as ‘cop 1’ etc (as opposed to ‘C.O.P 1’).
 
Appendix 5.3:
The Court of Protection’s Practice Directions are given under MCA, s 52 and are available on the HMCS website. Go to www.hmcourts-service.gov.uk, select ‘Legal/Professional’ from the left-hand side, then ‘Practice Directions’ from the left-hand side, then

‘Court of Protection’ from the right hand side; or go direct to www.hmcourtsservice.gov.uk/cms/14705.htm .
 
Appendix 5.13:
Model Forms of Order and an example of an explanatory note are attached to this Practice Note and can be downloaded from the websites of either the Official Solicitor (http://www.officialsolicitor.gov.uk/os/offsol.htm) or CAFCASS (www.cafcass.gov.uk).
 
The website — http://www.medialawyer.press.net/courtapplications/ gives details of the organisations represented and instructions for service of the application. Unless there is a particular reason not to do so, copies of all the documents referred to above should be served.

[Editor’s note, 13.10.10: This link appears to be no longer publicly accessible. We will update this site with an alternative link as soon as we can.] 
 
Service of orders should be effected in the usual way, i e by fax or by post. Contact details for the national press and broadcasters can be found at http://www.medialawyer.press.net/courtapplications/.

[Editor’s note, 13.10.10: This link appears to be no longer publicly accessible. We will update this site with an alternative link as soon as we can.]