Download - Mental Capacity Act and Deprivation of Liberty Safeguards case law update slides - Neil Ward
• following Supreme Court decision in
Cheshire West, Court now beginning to
deal with practical impact of potential
increase in applications to Court of
Protection
• Sir James Munby, President of the Court
of Protection hearing 5-6 June 2014
• hearing to explore possibility of
‘streamlined process’ for applications
• initial authorisation must be by a Judge,
not a Court Officer
• initial application can be on the papers
and does not necessarily require an oral
hearing
• ‘triggers’ for an oral hearing where
– P objects
– essential issues are in dispute
– any other reason the Court thinks
appropriate
• ongoing review annually by a Judge
Separate applications for
each individual (and
therefore separate Court
fee)
Anticipated revised Court
forms and practice
directions
Draft order
Proof of age and eligibility
Unsoundness of mind (medical opinion still required)
Confirmation imputable to state
Nature of arrangement and why it is a deprivation of liberty
Evidence on best interests – including any less restrictive option
Indication of P’s wishes, values and beliefs/involvement of others
Any advanced directive, lasting power of attorney or deputy
Eligibility for public funding
Identify of potential litigation friend
Any reason for urgency
• P does not need to be a party to
proceedings
• must be given opportunity to be joined as
a party if wish and given proper support
• if P is a party then litigation friend is
required
• litigation friend can (with the permission
of Court) act without solicitors
• Court clearly looking to streamline process
• likely to be some time before
forms/practice direction revised
• in the meantime practitioners urged to
comply with the spirit of the Judgment
pending this
• a second judgment anticipated
• appeal?
The Acute Health Trust, The Acute Health
Trust and the Council and DD and BC [2014]
EWCOP11
DD 36 year old lady with autistic spectrum disorder and mild
borderline learning disability
Complex obstetric history – expecting her sixth baby
Significant previous complications with other births
DD and her partner, BC, refused to engage with public bodies and
despite considerable efforts by the latter to try to support her
2 previous orders had authorised removing DD from her home
temporarily to accept medical assessment of her pregnancy
DD totally disengaged from services – wanted a natural home delivery
All public bodies opposed this – significant risk to her and baby given her obstetric history
Judge found that DD lacked capacity to make decisions on her medical treatment and particularly lacked capacity to make decisions on the mode of
treatment (caesarean section)
Court reminded of Supreme Court decision in Aintree University
Hospital NHS Foundation Trust v James that the power of the
Court is only to “do for the patient what he could do for
himself if of full capacity but goes no further” and
“whether it is in the patient’s best interests to give the
treatment”
• evidence clear that DD would not co-
operate and therefore force may be
required to access her home and
transport her to hospital
• Judge satisfied that despite interference
with DD’s liberty, it was in her best
interests and least restrictive option to
authorise authorities to go into her home
and remove her, by force if necessary, to
hospital in order to undergo planned
caesarean section
• Court agreed that inappropriate to advise
DD or BC of the planned date of the
caesarean for the risk that they may
abscond. They were however told of the
plan, but not the timings.
• initial hearing Judge found it would be in
DD’s best interests to offer contraceptive
education
• second hearing (9 days later) Court made
order that
1. reason to believe DD lacked capacity to
make decisions in relation to
contraception (despite having been given
contraception in the past and
professionals not questioning her capacity
to receive this)
2. that she should be provided with
education on contraception
3. that she should receive a contraceptive
injection at the time of caesarean section
DD continued to refuse to engage and therefore Court authorised use of reasonable force to convey DD to education training in a community health setting
Plan for her to be assessed on her capacity to make contraception decisions – not compelled to co-operate but can be conveyed by force if necessary in order for
assessment to be undertaken
Judge found plan for assessment post caesarean in DD’s best interests, and pending that assessment interim judgment that she lacked capacity to make decisions on contraception
Best interests for her to have depot injection as contraception for 3 months to provide “cover” pending the assessment
Case illustrates how far Court is prepared to go – may be seen to be “extreme” case
Careful judgment and clear that authorities had undertaken very considerable effort to attempt to engage with DD
Use of force may be contentious especially to convey to education on contraception
Fine distinction between saying that nobody can be forced to undergo a capacity assessment and being forcibly conveyed to a place where such an assessment will take
place
recent decision Sandwell & West Birmingham
Hospitals NHS Trust and CD and EF and AB
and NHS Sandwell and West Birmingham CCG
[2014] EWCOP23
• Court guidance re making out of hours
applications
• warning from Court not to delay making
applications and to involve Official
Solicitor as early as possible
We hope you found it useful.
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