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Court of Protection Update (December 2012)

Sally Bradley and Michael Edwards, Barristers, both of 4 Paper Buildings consider recent developments in the Court of Protection.

Sally Bradley, barrister, 4 Paper BuildingsMichael Edwards, barrister, 4 Paper Buildings

Sally Bradley
, Barrister, and Michael Edwards, Barrister, of 4Paper Buildings

This edition of the Court of Protection update will look at:

Medical treatment
In NHS Trust v K & Ors [2012] EWHC 2922 (COP) the Court was asked to determine whether a 61 year old woman with cancer of the uterus should undergo a potentially life-saving operation. The woman lacked capacity to make the decision herself. She denied that she had cancer and was vehemently opposed to the operation. The medical team at the hospital and the woman's three sons supported the operation taking place. The Official Solicitor opposed the operation on the grounds that it was too risky.

The operation had originally been attempted in July 2012, but had to be aborted because of the woman's resistance. This failed attempt prompted the case being brought before the Court of Protection.

Mr Justice Holman heard evidence from a range of medical experts, treating and forensic, as well as the woman's three sons. The expert evidence was that the greatest period of risk would be in the post-operative period, which would be exacerbated by the woman's non-compliance with further treatment. The overall risk of mortality at some stage in the process was approximately 40-50 percent. It was this evidence which led the Official Solicitor to oppose the operation.

Holman J granted a permissive order, allowing the hospital to carry out the operation. The operation would be lawful, notwithstanding the lack of consent of the patient. The Court did, however, grant a wide ranging 'power of veto'. A number of surgeons and anaesthetists specifically named in the order would be able to call a halt to the surgery at any time if they no longer felt that it was in the woman's best interests.

The Court also found that it would be in the woman's best interests to be lightly sedated prior to the being told that the operation was going ahead. Relying on Wall P's decision in DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam), Holman J found that where it is in the patient's overall best interests to have the operation it would be lawful to sedate her to enable the operation to take place.

The judgment in Re SK [2012] EWHC 1990 (COP) provides important guidance on the test to be applied to the question of joinder in Court of Protection proceedings. The rules on joinder are set out in Rule 75(1) of the Court of Protection Rules:

'Any person with a sufficient interest may apply to a court to be joined as a party to the proceedings',

and Rule 73(2):

'The court may order a person to be joined as a party if it considers that it is desirable to do so for the purposes of dealing with the application.'

This, on its face, appears to be a fairly low test, the key criteria being 'sufficient interest' and 'desirability'. However, as Re SK demonstrates the Rules do not provide an open door to all those who may at first appear to be obvious candidates for joinder.

The case concerned SK, a 55 year old man who had been left severely physically and mentally disabled after being struck by a bus in 2008. The Court was concerned with two separate applications for joinder: by SK's brother, CK, and by the bus company whose bus had struck SK.

SK had been cared for in a residential placement since the accident. The proceedings to which CK and the bus company sought to be joined concerned the issue of where SK should live on an ongoing basis.

CK was also acting as SK's litigation friend in concurrent personal injury proceedings against the bus company in the Queen's Bench Division. CK sought to be joined to the Court of Protection proceedings 'to advance his opinion in so far as it reflects his views as litigation friend in the personal injury proceedings.' This raised objection from the Official Solicitor who argued that joining CK would effectively mean that SK had two representatives in the proceedings, potentially saying different things. In the alternative CK sought to be joined simply as SK's brother and someone with a real interest in seeing that his best interests were met. On this basis, the OS raised no objection to CK being joined.

The Court found, on the basis of CK's position as SK's brother, that he should be joined to the proceedings. CK would not be SK's litigation friend in the Court of Protection proceedings, as he was in the QBD. But CK was someone with an interest in SK's best interests being safeguarded and he should therefore be joined. CK set out in an affidavit, as he was required to do under the rules, the support he had offered to SK and all of the support he would continue to offer. This was more than enough to satisfy the Court that he should be joined.

The bus company's application for joinder was more complex. The company sought to be joined in order to make submissions on the discrete issue of where SK should live and the rehabilitation regime that would be put in place. Since it was likely that the bus company would be paying for some or all of this, it argued that its voice should be heard. The company also argued that it would be at an unfair disadvantage to CK if only he were joined, as CK could argue for a more expensive placement and rehabilitation program. Any declaration in the Court of Protection would effectively pre-empt the QBD proceedings in which the quantum of damages was to be determined. This, the company argued, would place a severe restriction on its Article 6 rights in the QBD proceedings.

The OS, supported by the local authority, argued against the joinder of the bus company. The OS argued as a point of principle that the company had no standing in proceedings, which were essentially concerned with SK's best interest, as opposed to the QBD proceedings which were concerned with the quantum of damages. It would also be undesirable from a practical point of view, leading to the calling of additional witnesses and increasing the court time required for the case.

The Court rejected the company's application for joinder. The QBD would not be bound by the Court of Protection's decision and could hear its own evidence and make its own decisions on the extent of damages. There was no breach of the company's Article 6 rights as it would have a forum in which to make full submissions on the issue with which it was concerned. The Court of Protection undertook the task of looking at the case in the round to determine what declaration, if any, to make. This decision would always be open to review if there was a change of circumstances. The QBD in contrast had to take a snapshot and determine what the award should be, judged on the circumstances at a particular moment in time. Inviting the company in could create a raft of issues now and at future hearings about its role in the decision making process for SK.

Looking at the rules themselves, the Court found that the wording in Rule 75(1): 'Any person with a sufficient interest', means a sufficient interest in the proceedings themselves. The company's financial interest was therefore not a relevant consideration. As for Rule 73(2): 'The court may order a person to be joined as a party if it considers that it is desirable to do so for the purposes of dealing with the application', the court had to be satisfied that joinder would enable the court better to deal with the substantive application. The joinder of the company would not assist here as there was already substantial expert evidence on the placement and care of SK which would not be added to by the company's involvement.

Inherent jurisdiction
The case of XCC v AA & Anor (Rev 3) [2012] EWHC 2183 (COP) followed on from proceedings in October 2010 in which Mrs Justice Parker made various declarations in respect of DD, who suffered from a severe disability which meant that she had very little comprehension and needed assistance with almost all aspects of her daily life. DD was of Bangladeshi origin and had been married in 2003 by arrangement to AA. DD had come to the attention of the local authority's learning disability team after serious concerns were raised about DD's welfare. In the face of strong opposition from DD's parents and AA, in December 2012 Parker J made the following declarations:

i. DD lacks the capacity to marry.
ii. DD lacked the capacity to marry in 2003 when the marriage ceremony took place in Bangladesh.
iii. DD lacks the capacity to consent to sexual relations.
iv. DD lacks capacity to make decisions as to where she should live.
v. DD lacks capacity to make decisions regarding her care.
vi. DD lacks capacity to make decisions regarding with whom she should or should not have contact.
vii. It is unlawful for AA or any other person to engage in sexual activity with DD (including sexual touching).
viii. It is at the present time in DD's interests to reside with her parents.
ix. It is not in DD's interests to reside with AA.
x. It is not in DD's interests that AA should provide her with care.
xi. It is not in DD's interests to have contact with AA.
xii. From 2003 it was unlawful for AA to engage in sexual activity (including sexual touching), and it continues to be unlawful for AA to engage in sexual activity (including sexual touching) with DD.

Following these declarations, the Court agreed with the OS that there should be a period of reflection before a decision was taken about the status of the marriage. It was this issue which brought the matter back before Parker J in October 2011 (with judgment only being delivered in July 2012). No party at the hearing, including the OS and the local authority, was asking the Court for a declaration of non-recognition. The OS and local authority were concerned in particular about the possible stigmatization of DD in the Bangladeshi community were the status of the marriage to be questioned. Parker J had heard expert evidence about this in October 2010 but had doubted the extent of DD's possible stigmatization. The judge invited both the OS and the local authority to argue the case for annulment but both declined to do so. The Court therefore appointed an Advocate to the Court to advance this argument.

Counsel appointed by the Attorney General supported the making of a declaration of non-recognition. The Court noted that it does not have jurisdiction under section 15 of the MCA 2005 to make a declaration of non-recognition. However, the inherent jurisdiction of the High Court could be used to make such a declaration. In KC v Westminster [2008] EWCA Civ 198, the Court of Appeal had rejected the argument that the inherent jurisdiction had been subsumed within the MCA 2005. The Court of Appeal specifically approved the statement of Mr Justice Roderic Wood at first instance that:

"… where it is necessary, is lawful and proportionate I consider that this court can exercise its inherent jurisdiction alongside, as appropriate, the Mental Capacity Act 2005. Consistent with long-standing principle, the terms of the Statute must be looked at first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the statute or any supplementary framework."

In XCC, Parker J found that there was a gap in the MCA 2005, namely the power to make a declaration of non-recognition, which the inherent jurisdiction could be used to fill. Even taking the concerns about stigma at their highest, they did not raise such grave welfare concerns as to outweigh the harm of continuing the marriage. The marriage was a breach of DD's personal rights, it had fuelled family conflict and it had increased tension with the local authority. There were, in short, strong welfare grounds for the use of the inherent jurisdiction.

There were also important public policy considerations. AA's leave to remain had expired. His immigration status was due to be reviewed at the conclusion of the case. Parker J found that AA considered the technical subsistence of the marriage an important factor in assisting his immigration status. AA should not be entitled to rely on a marriage to which DD did not consent to assist his application for leave to remain. Parker J acknowledged the principle set out by Munby J in S v S [2008] EWHC 2288, [2009] 1 FLR 241

'that the wardship judge cannot in the exercise of that jurisdiction interfere with the exercise by the Secretary of State for the Home Department of his or her powers in relation to matters of immigration and asylum.'

However, Parker J noted that she was 'exercising an independent jurisdiction as to whether to grant a declaration, and the fact that AA has gained entry relying on this marriage is relevant to whether I find its recognition offensive, which I do.' AA would not have married DD had he not wanted to come to England to live and work – this raised an important point of public policy which the court was entitled to take into account.

The final consideration for the Court was whether the inherent jurisdiction could be exercised of its own motion. The Advocate to the Court submitted that academic opinion supported its use on the court's own motion. This was not challenged by any party. Parker J went on to use the inherent jurisdiction to make the declaration that the marriage should not be recognised. The Court further directed that nullity proceedings should be issued and that the OS be appointed as DD's litigation friend in those proceedings.

The case indicates the broad range of uses to which the inherent jurisdiction can be put in Court of Protection proceedings. Section 15 of the MCA 2005 sets out the statutory scope of the Court's powers to make declarations:

15 Power to make declarations
(1) The court may make declarations as to—

(a) whether a person has or lacks capacity to make a decision specified in the declaration;
(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.

(2) "Act" includes an omission and a course of conduct.

The decision in XCC makes plain, however, that the inherent jurisdiction can be used to make a far broader range of declarations than those set out in section 15. Despite not being supported by any party in the case, including the OS on behalf of DD, the Court found that it had jurisdiction to make the declaration of non-recognition and to direct that nullity proceedings be issued. The decision is an important step in confirming the use of the inherent jurisdiction, as initially developed in KC v Westminster, to fill any gaps in the MCA 2005. It also indicates the range of powers the Court has if it is determined to use them.