Chapter 5: Going to Court
This is part of the online companion site to the book Medical Treatment: Decisions and the Law - The Mental Capacity Act in Action, edited by Christopher Johnston, written by members of 3 Serjeants' Inn and published by Bloomsbury Professional in 2010.
The site provides (1) updating material as it becomes available and (2) hyperlinks to website addresses given in the hard copy. The material is organised according to the book's chapter headings. Click on the chapter headings on the left-hand side to access the material for other chapters.
Updating material
Update to paragraph 5.23 [The court's power to make medical treatment decisions]
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:
- He made declarations that Articles 5 and 8 had been breached.
- He addressed issues concerning interim authorisation by the court of a deprivation of liberty.
- 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.
- 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:http://www.bailii.org/ew/cases/EWHC/Fam/2010/621.html
15/03/10: Court of Protection declares breach of human rights
The City of Sunderland 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
Paragraph 5.19 - Footnote 4:
www.hmcourts-service.gov.uk
Paragraph 5.21 - Footnote 2:
SI 2007/1744, made under MCA, s 51. The Rules are the Court of Protection equivalent of the Civil Procedure Rules. They are divided into Parts. Note that the Rules have been amended and the version available on the HMCS website at 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, http://www.judiciary.gov.uk/docs/judgments_guidance/pd/media-attendance-hc-200409.pdf .
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 at http://www.hmcourts-service.gov.uk/cms/files/APPLICATIONS_FOR_REPORTING_RESTRICTION_ORDERS.doc
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– http://www.hmcourts-service.gov.uk/HMCSCourtFinder/FormFinder.do 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.
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/.