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Court of Protection Update (October 2011)

Sally Bradley, Barrister, of 4 Paper Buildings considers recent cases in the Court of Protection including W v M, the 'right to die' case

Sally Bradley, Barrister, 4 Paper Buildings

Sally Bradley
, Barrister, 4 Paper Buildings

This edition of the Court of Protection Update sets out the recent developments concerning: 

The right to die
In the widely publicised case of W v M, S and A NHS Primary Care Trust [2011] EWHC 2443 (Fam) Mr Justice Baker had to consider whether it was lawful to withdraw artificial nutrition and hydration from a 52 year old woman, M. M had lived a normal life until 2003 when she was found by her partner on the morning she was due to go on a skiing holiday in a drowsy and confused state. She was taken to hospital and quickly fell into a coma. She was found to have suffered from viral brain stem encephalitis. She regained consciousness some weeks later, but had suffered extensive and irreparable brain damage.

M was originally diagnosed as being in a vegetative state. She was re-examined in the course of the proceedings and found to be aware to some extent of herself and her surroundings – a minimally conscious state. In 2007, her family applied to the court for a declaration that it was lawful to withdraw the nutrition and hydration which was keeping her alive. As the case was brought before the implementation of the Mental Capacity Act 2005, it was brought under the inherent jurisdiction of the High Court rather than in the Court of Protection.

The hearing before Baker J lasted for ten days and included evidence from M's family, comparing her previous life to her current circumstances. The family argued that their application was based on M's wishes and feelings as expressed in informal statements made prior to 2003. She had, for instance, seen a news report about Tony Bland, who had been caught up in the Hillsborough disaster and severely brain damaged, and had commented that it would have been better to allow him to die. M, however, had not made any formal advance decision that she wanted artificial nutrition and hydration to be withdrawn in her own case if such a decision ever had to be made. In these circumstances, Baker J found he could only give limited weight to M's previously expressed wishes and feelings. The Official Solicitor argued against the withdrawal on the basis that it would not be in M's best interests given her state of consciousness and her otherwise stable condition.

In his careful, 261 paragraph judgment, Baker J held that the family's application should be refused. The overriding factor in his view was the need to preserve life:

'Although not an absolute rule, the law regards the preservation of life as a fundamental principle. As another judge has said: "there is a very strong presumption in favour of taking all steps which will prolong life and, save in exceptional circumstances, or where the person is dying, the best interests of the patient will normally require such steps to be taken"' [para.7]

Baker J found that there was a 'vast difference' between vegetative state cases, in which the balance almost always falls in favour of withdrawal, and minimally conscious state cases which depend on the facts and the expert evidence in each case. The case was distinguishable from the well-known case of Airedale NHS Trust v Bland [1993] AC 789, in which the House of Lords had allowed treatment to be withdrawn from a patient in a permanent vegetative state:

'.....unlike Tony Bland, and other patients in the VS, M is conscious, albeit minimally so. She is sensate, clinically stable, aware of herself and her environment, able to respond to people, and to music, and also, in a very limited way, to communicate about her needs. In short, she is recognisably alive in a way that a patient in VS is not.' [para.221]

Baker J also relied on the fact that, although M did suffer regular pain, she was not in constant or extreme pain. There was also evidence that M did enjoy some aspects of her life. Her existence was not overwhelmingly negative or burdensome. All of this went towards finding, on balance, that the nutrition and hydration should not be withdrawn.

It is also worth noting that Baker J restated the principle set out in Bland that all decisions concerning the withdrawal of treatment from someone in a vegetative or minimally conscious state should be referred to the Court. Although this is not explicitly stated in the Code of Practice, it is set out in the Court of Protection Practice Direction, at 9E, and has now clearly been reaffirmed by Baker J's decision.

Finally, Baker J decried the fact that the family had not been granted public funding for their application:

' is intolerable that the family should have been dependent on the willingness of lawyers to work without remuneration. In this case, the "playing-field" was level because of the exceptional generosity of the Applicant's lawyers. In other cases, members of a family who wished to ask the court to authorise the withdrawal of ANH but did not qualify for means tested public funding may have to appear in person, given the very high costs of litigation. Such a situation would seem to infringe the family's rights under Article 6 of ECHR. There are many demands on the restricted legal aid budget, but consideration should be given to extending the right to non-means tested public funding to family members seeking to bring this type of application. At present, such non-means tested funding is available to parents whose children are the subject of care proceedings under the Children Act 1989. That provision is justified by the fundamental and life-changing consequences which flow from the making of a care order. The same argument applies to applications for the withdrawal of artificial nutrition and hydration.' [para.260]

Capacity and forced marriage
The case of SMBC v WMP and Others [2011] EWHC B13 (COP) provides an interesting addition to the line of cases dealing with capacity to consent to marriage and sexual relations in that it concerned a possible forced marriage. Three brothers, all with varying degrees of capacity, were thought to be in danger of being forced into marriage. The case had originally been brought as family proceedings by one of the brothers (HSG). HHJ Cardinal gave directions in those proceedings for the local authority to investigate the case on the basis of the brothers' suspected lack of capacity. The matter was transferred to the Court of Protection, with the local authority now as the applicant. HSG then applied to be discharged as a party on the basis that the application was not properly brought in the Court of Protection in the absence of the diagnostic and functional tests required under the Mental Capacity Act (MCA) 2005 indicating that he lacked capacity.

The medical evidence in the case was inconclusive on the question of capacity and HSG was refusing to undergo any further testing. The local authority's application was for an interim declaration on capacity, requiring the court to be satisfied that the criteria in s.48 of the MCA 2005 were met:

48. The Court may pending the determination of an application to it in relation to a person ("P"), make an order or give directions in respect of any matter if –
(a) there is reason to believe that P lacks capacity in relation to the matter,
(b) the matter is one to which its powers under this Act extend, and-
(c) it is in P's best interest to make the order, or give directions, without delay.

In Re F [2010] 2 FLR 28, HHJ Marshall made clear that s.48 sets a lower threshold than the evidence required under s.15 (final orders) concerning capacity. Counsel on behalf of HSG argued that even this lowered threshold was not met. The Court, however, set the limited medical evidence alongside HSG's own statements in the case, which indicated that he had very little understanding about the concept of marriage. He had, for instance, told a social worker that his marriage would end when his wife had a stamp in her passport entitling her to remain permanently in the UK. He had also asked a woman to marry him after giving her directions at a bus stop and had been surprised at her refusal. The Court found that the s.48 criteria were met and that it could make an interim declaration that HSG lacked capacity. The local authority were directed to instruct a psychologist to provide a further expert report and, if HSG refused to undergo that examination, the Court made clear that adverse inferences would be drawn.

HHJ Cardinal then set out what he saw as the lessons to be learned from the application:

i. An expert as a matter of good practice ought in my judgement to seek clarifications and raise questions under Rule 129 Court of Protection Rules 2007 (which states that an expert can apply to the court for directions to assist him in carrying out his functions as an expert) before completing a report referring to lacunae in the information before him.

ii. A social worker investigating capacity ought to keep a party's solicitor informed of his intention to interview that party and not just proceed.

iii. It is right to conclude that a party may lack capacity [and thus the test in Re F is met] if there are significant and important gaps in the history and therefore the knowledge of the expert examining that party and there is evidence which may well point to incapacity in the relevant regard.

iv. It is unhelpful for a doctor [in this case a GP] to descend to vague expressions such as mental health issues in a report he/she knows is to go to the court.

v. It is not an improper interference with the human or common law rights of a party for a medical expert to be provided with educational health and other records to enable him to complete his inquiries.

vi. Psychometric testing is not so intrusive as to be an improper test to apply to someone on the borderline of capacity even where he is reluctant to undertake them. 

vii. If a solicitor acting for the Official Solicitor discusses the case with a joint expert orally or in writing the instructing parties should be provided with a copy of that communication or attendance note of that conversation.

In Cheshire West and Chester Council v P and Another [2011] EWHC 1330 (COP), Mr Justice Baker had to consider whether the misconduct of a local authority in the course of Court of Protection proceedings had been so bad that the other parties should be awarded costs against the authority. The judge also had to consider whether that authority should be named.

The case concerned a 38 year old man, P, with cerebral palsy and Down's Syndrome. All parties accepted that he lacked capacity to make decisions as to his care and residence. The case came before Baker J for consideration of whether P's accommodation by the local authority amounted to a deprivation of liberty. Baker J applied the guidance given by the Court of Appeal in P and Q v Surrey CC and others [2011] EWCA Civ 190 (see previous edition of this update) and found that P was being deprived of his liberty.

Baker J then went on to consider the Official Solicitor's application for costs against the local authority. The general rule in Court of Protection proceedings, as set out in Rule 157, is that there will be no order as to costs for the proceedings or that part of the proceedings that concern P's welfare. Rule 159 sets out the exceptions to the general rule:

159 Departing from the general rule
(1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified, the court will have regard to all the circumstances including -

(a) the conduct of the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) the role of any public body involved in the proceedings.

(2) The conduct of the parties includes-

(a) conduct before, as well as during, the proceedings;
(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;
(c) the manner in which a party has made or responded to an application or a particular issue; and
(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

As Baker J noted, there is very little authority on how these costs rules should be applied. In G v E Manchester City Council and F (Costs) [2010] EWHC 3385 Baker J had himself gave the following guidance to local authorities on the question of costs (paras.39-40):

'The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong.'

The complaint made by the OS in this case was that the local authority had failed to be candid with them or the Court on the issue of restraint, including providing misleading information on from the witness box on oath. This extended the length of the proceedings and caused the OS to incur costs requesting documents which would it would otherwise not have required. The local authority was also found to have tampered with case records, destroying old records and creating new ones. Weighing up these factors, Baker J found that this was a case in which the Court should depart from the general rule on costs, stating at para.76: 'overall the proceedings were rendered significantly more complex, time-consuming and costly as a result of the actions of the local authority and its employees.'

Baker J also acceded to an application that the local authority should be publicly named. The public interest in holding the authority's employees accountable for their misconduct was found to be a 'good reason' under Rule 93(1)(a) for the authority to be identified. It would also help to sustain public confidence that the Court of Protection is carrying out its function properly. There was also little or no risk that identifying the name of the authority would identify P.

Press reporting in practice
The litigation concerning Steven Neary returned to Court at the beginning of the summer for the substantive hearing of the lawfulness of the local authority's conduct. The case had already made headlines for decision of Mr Justice Jackson in LB of Hillingdon v Neary [2011] EWHC 413 (COP) (dealt with in the last edition of this update) to allow the media to attend the hearing and identify Steven Neary as the protected party.    As well as providing another critique of a local authority's conduct, LB Hillingdon v Neary and Another [2011] EWHC 1377 (COP) is an interesting postscript to the earlier decision on the media's attendance.

The five-day hearing was attended by a 'small number of reporters'. Jackson J expressed his confidence that their presence had not affected the course of the proceedings and that they would report the proceedings in a fair and balanced way. There were, however, problems caused by a media briefing note circulated by the London Borough of Hillingdon on the eve of the hearing. The document had been intended to counteract the adverse publicity that Hillingdon had received, but it was described by Jackson J as a 'sorry document, full of contentious and inaccurate information, and creating a particularly unfair and negative picture of Steven and his behaviour.'

The note had only come to the attention of the court by chance on the last day of the hearing. Hillingdon apologised unreservedly to the Court, but the damage to Steven and his family had been done. The incident is an example of the unintended consequences that can flow from an order allowing media access, particularly in the relatively untested arena of the Court of Protection.

Fact finding hearings
In WCC v GS and Others [2011] EWHC 2244 (COP) District Judge Marin gave guidance on the circumstances in which a fact finding hearing should be held in the Court of Protection. The case concerned a dispute about where an 83 year old woman, GS, should live and the level of contact which GS's son, RS, should have with her. RS made allegations that the care home in which GS was accommodated had mistreated her over a number of years. RS was so opposed to the care home and its staff that he had broken into the home and trashed GS's room.

One of the issues before DJ Marin was whether a fact finding hearing was required to deal with the allegations made by the care home against RS, prior to any determination of the level of contact between RS and GS. The Judge found that such a hearing was not required in this case:

'30. The obvious problem with fact finding hearings is that they can be lengthy, they eat up the court's pressed resources and they are expensive not only because of legal costs but in terms of the cost of social workers and other professionals involved who need to attend court to give evidence.'

RS had made admissions about his conduct which the judge found were sufficient to enable him to determine the level of contact:

'32. It should be said in RS's favour that he has accepted some of the allegations such that I have taken the view in agreement with all the parties that there is no need for me to embark on a long fact finding exercise in respect of every event that is found in the papers. I believe this is a proportionate way of dealing with matters.
35. Given these admissions I do not need to make any further investigation into the various allegations made against RS because the admissions on their own in my view demonstrate that the concerns raised by WCC about RS' behaviour are genuine.'

DJ Marin's reasoning is an example of the pragmatic approach often taken in the Court of Protection, in which fact finding hearings remain rare.