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Samantha Bangham - Family Law Reporter Avid Newswatch visitors will be aware that I have become accustomed to writing a weekly update on family law case law. It struck me that it may also be useful to do the same for the Court of Protection, albeit on a monthly basis, in order to provide a rundown of the cases that are worth taking a further look at. All of the essential cases will be reported in Court of Protection Law Reports which is available in print and online and can be purchased here. Practitioners in this area may also be interested in the Elder Law Journal.

To start with I have a judgment from Baker J sitting in the Court of Protection in July on the subject of capacity: A Local Authority v TZ [2013] EWHC 2322 (COP). In this judgment Baker J deals with the issue of a 24-year-old man who was diagnosed with mild learning difficulties, atypical autism and hyperactivity disorder (ADHD). He had reportedly engaged in sexual activity with a man who he claimed had sexually assaulted him although he initially remained living with him. He was now placed in a residential unit which offered supportive accommodation for people with learning disabilities. The local authority applied to the Court of Protection for declarations as to capacity to consent to sexual relations, to litigate, to decide where to live to decide who he could have contact with and make decisions as to his care. The court directed that it would be in the man’s best interests to undertake a course on sexual education to facilitate his capacity to consent to sexual relations and that evidence from an independent sexual health specialist should be obtained.

In determining the issue of capacity to consent to sexual relations, Baker J adopted the approach of Munby J in Local Authority X v MM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, that capacity to consent to sexual relations was act specific not person specific. He further concluded that in cases where it was clearly established that the person was homosexual it was ordinarily unnecessary to establish that the person had an understanding or awareness that sexual activity between a man and a woman may result in pregnancy. At present it was unnecessary to decide the question of whether the man had capacity to determine his place of residence as he was presently settled at the residential care home. In relation to the issue of capacity to consent to sexual relations, the psychiatrist had fallen into error in stipulating the man needed to be able to weigh relevant information involving a complex analysis of the risks and benefits. The weighing of information should be a relatively straight forward decision balancing the risks of ill health with pleasure, sexual and emotional brought by intimacy. Following the judge’s conversation with the man in court he found he did have capacity to consent to and engage in sexual relations. That capacity had been significantly helped by the sexual education course.

Also heard in the Court of Protection in July was the case of A Local Authority v WMA and MA [2013] EWHC 2580 (COP). This case concerned a man suffering from an autistic spectrum disorder, atypical autism and a pervasive development disorder. He lived an isolated and insulated life, largely dependent on his mother who suffered with sight and mobility problems. There were serious concerns about the state of their living conditions which had already necessitated a move and also for the effects of the man’s lifestyle on his long-term development. The social work team concluded that he needed to be moved into supported living accommodation. The local authority sought an order as to the lawfulness of a deprivation of liberty to ensure a move was affected and that he remained there.

Weighing all the evidence, including that of a consultant psychiatrist, it was clear that the man did not have capacity to decide where he should live, what care package he should be subject to or what contact to have with his mother. In taking a best interests decision the judge had to bear in mind that the man’s wishes and feelings to remain with his mother were not judged to be rational or sensible and to give them determinative weight would have long term emotional and psychological consequences. It was clear that a move was necessary not for fanciful reasons but due to real risk. The mother was in effect abusing the man by restricting his development, keeping him isolated, refusing help, failing to ensure he is cleanly presented and keeping the home in a dirty and squalid condition. The court would provide for the deprivation of liberty by making orders permitting: the local authority to enter the home if necessary; for the police to restrain the man if necessary; to remove him from his current home and take him to the specialist accommodation where the local authority would have power to retain him if needed; and the local authority would have the power to sign the tenancy agreement on his behalf. Those measures were proportionate and necessary.

In the judgment of Sandwell Metropolitan Borough Council v RG, GG, SK and SKG [2013] EWHC 2373 (COP), [2013] COPLR forthcoming, provided by Holman J sitting in the Court of Protection the court was engaged with the case of a 38-year-old man who had suffered with learning disabilities, low intelligence, and challenging behaviour from an early age. Prior to his death, the man’s father and the family of a woman in her late-twenties had arranged a marriage between his son and their daughter, which took place in India in March 2009. Despite not being aware of the man’s disabilities until the wedding itself, and reacting badly on discovering them as a result, the woman later admitted to caring about and falling in love with the man. She travelled to England herself in March 2010 following the man’s earlier return to the country, and visited him regularly in the accommodation provided and staffed for him by the local authority. She claimed the marriage had been consummated on the night of the wedding and that sexual relations had taken place a few times since. However, a consultant psychiatrist made it clear that the man had no understanding of sex whatsoever, and, accordingly, lacked the capacity to consent to sexual touching. The woman accepted a condition of contact not to touch the man sexually or intimate to him that she desired sexual relations, at the risk of violating s 30 of the Sexual Offences Act 2003. The judge’s final order included a declaration that the man lacked capacity to consent to sexual relations.

The judge declared that the man also lacked the capacity to consent to or contract a marriage and, under English law, had lacked the same capacity at the time of his own marriage. Therefore, in terms of the marriage itself (which was recognised in England and Wales), there was the question of whether or not it should be annulled in the man’s best interests. There was a view from the local authority that it would not only be in the man’s best interests for the marriage to be annulled, but it would also be a matter of policy to do so. The Official Solicitor could not identify any benefits to having the man’s marriage annulled. Despite having no comprehension of marriage, the man reacted positively and with pleasure to visits from the woman, and had been heard to use words such as ‘marriage’, ‘wife’, and ‘marry’ in connection with her. Any notions of divorce or separation put to him were reacted to badly by the man, and the judge saw that the man and the woman clearly wanted to remain married to one another. Acting in the man’s best interests, he excluded from the otherwise agreed order any sections which provided for the Official Solicitor to present a petition for the annulment of the marriage, and made orders by consent in relation to the man in all other respects.

The judgment of A NHS Trust v Dr A (By His Litigation Friend the Official Solicitor) [2013] EWHC 2442 (COP), [2013] COPLR forthcoming, concerned a 50-year-old man who was a former GP in his home country of Iran, who came to England on a six-month visa in August 2011 in order to study English. During his stay he applied for asylum three times, to be declined every time. In May 2012 his passport was confiscated by the UK Border Agency, to be returned to him only when he went back to Iran. The man subsequently went on a hunger strike, mistakenly believing that this would help him recover his passport. He was admitted to hospital in July 2012 following several physical problems caused by his hunger strike, and continued to remain in hospital for almost a year following this initial admittance.

During his initial time in hospital the man’s psychiatrists and doctors concluded that he was suffering from a delusional disorder, and lacked the capacity to decide whether to eat or drink. Shortly after these conclusions were made the man was fitted with a nasogastric tube in order to facilitate feeding, which on many occasions he removed and refused the reinsertion of. The man expressed several symptoms of a delusional disorder. In August 2012 he was detained in hospital under s 2 of the Mental Health Act 1983 and, later, under s 3 of the same Act. An application was made to the Court of Protection in December 2012 for permission to apply for an order allowing the hospital to continue providing the man with artificial nutrition and hydration.

After considering evidence from the man’s doctors, including independent psychiatric assessments, the judge accepted the opinion of the psychiatrists involved in the case that the man did, indeed, suffer from a delusional disorder, and, by extension, did not have the capacity to either litigate, or make decisions concerning nutrition and hydration. The judge concluded that, in accordance with s 1(5) of the MCA, it was in the man’s best interests to be forcibly administered artificial nutrition and hydration by the hospital. However, the issue had arisen of whether it was a deprivation of his liberty, in regard to Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 due to the hospital having to physically restrain the man whilst fitting him with a nasogastric tube. Despite finding that this subject was surrounded by much complex legislation from both the MHA and the MCA the judge remained clear that he was under an operational duty, as per s 2 of the MCA, to protect the man as someone who lacked capacity to decide whether to accept nutrition and hydration at the risk of starvation. He, therefore, authorised the treatment of the man, including the deprivation of his liberty – ie, the forcible administering of artificial nutrition and hydration, and the lawful application of an appropriate level of force and restraint in order to do so.

Eleanor King J, sitting in the Court of Protection earlier this year gave judgment on the lawfulness of withholding medical treatment in the case of An NHS Foundation Trust v M and K [2013] EWHC 2402 (COP). The 22-year-old man was born with holoprosencephaly (HPE), a congenital abnormality of the brain. The condition was extremely rare, progressive and ultimately fatal. He suffered from cerebral palsy, severe learning difficulties and was unable to walk. From a young age he had been cared for by a foster carer who was for all purposes his psychological mother.

The man’s health began to deteriorate in 2010 and required repeated hospital admissions. The medical evidence now was that the man’s condition had progressively and irreversibly deteriorated with profound muscle loss and an inability to maintain adequate nutrition. It was likely the situation would further deteriorate leading to respiratory failure. At that point it would be extraordinarily unlikely that he would recover even with ventilation in intensive care. The NHS Trust took a best interests decision that the man should not be resuscitated and sought declarations from the court that he should not be resuscitated, should not receive intensive care treatment (specifically that he should not be mechanically ventilated), and should not be given antibiotics in the event of contracting pneumonia. The mother agreed in relation to CPR but thought he should otherwise be given every chance to recover.

It was agreed by all parties that the man lacked capacity to litigate and to make the medical decisions before the court. In all of the circumstances it was in the man’s best interests for CPR to be withheld. He would inevitably continue to deteriorate even if CPR were successful. CPR would be futile and would in all likelihood lead to rib fractures, further loss of cognitive function and mechanical ventilation. In the case of immediately reversible conditions for which treatment would have a therapeutic benefit it would be in his best interests to receive such treatment. However, where intensive care and/or ventilation were considered there would be no therapeutic benefit and no prospect of a cure of his condition. It would also subject him to unnecessary discomfort and indignity. The orders sought by the NHS Trust would be granted.

In a decision of the Queen’s Bench Division concerning the ever-topical and controversial subject of legal aid, R (Moosa) v Legal Aid Agency [2013] EWHC 2804 (Admin) involved a 21-year-old man who suffered from hydrocephalus and had considerable, life-long mental and physical impairments. He resided in a local authority residential home. In proceedings in the Court of Protection the mother, father and brother now sought for him to move to live with them in the family home. The mother was not eligible for legal funding due to her owning her own home in respect of which she had equity in excess of the £100,000 threshold. The brother, however, was a student in receipt of a student loan and funding. There was no evidence that he possessed any significant capital nor that he would be ineligible for legal funding. The mother and brother were joined as parties to the proceedings and the judge made it clear that both of their cases in relation to the man were the same. The Legal Aid Agency refused the brother funding and the family sought judicial review of that decision. The mother submitted that the equity which financially disentitled the mother to public funding was the equity in the very house which she had adapted for his care needs and which the family wished him to return to.

It was not possible to say that although the mother was outside the financial eligibility criteria that she could not reasonably be expected to bring or fund the case. It did appear that the brother being joined to proceedings was a device with the view to obtaining funding. That was not to say that he did not have a sincere and legitimate interest in decision-making in relation to his brother or that it was inappropriate that he be a party to the proceedings. But, he could not surmount the hurdle that there was another person who could reasonably be expected to bring or fund the case, namely his mother. Her interest was at least as great as his, and the fact was that she did have the capital at her disposal. The decision reached by the Legal Services Commission in their decision letter was not even arguably wrong.

Back in the Court of Protection, Roderic Wood J gave judgment in A Local Authority v ED (By Her Litigation Friend, the Official Solicitor) [2013] EWHC 3069 (COP). This case involved a young woman in her early thirties who was diagnosed with a learning disability and orders had been made in 2010 in relation to where she should live and contact with her family. The family now brought proceedings once again to determine whether the woman had capacity to make decisions about: where to live; contact; personal care needs; the removal of her pubic hair (for cultural/religious reasons); and, whether or not she can consent to giving an achieving best evidence interview.

At a directions’ hearing the family changed their position on where the woman should live and suggested possible residential homes nearby which could be considered but neither were considered suitable. By the time of the scheduled 10-day-hearing the parents were in agreement with the orders proposed by the local authority but offered no explanation for their change of stance. The costs involved had been in the region of £350,000 and the parents had their expenses met from public funds which was said to be an astonishing sum to spend on one case particularly when the outcome was an agreement to consent to the requested orders. This is an intriguing judgment to read and in particular contrasted with the judgment of R (Moosa) v Legal Aid Agency [2013] EWHC 2804 (Admin) on the subject of legal funding.

Finally, in the case of Re Boff, [2013] COPLR forthcoming, Senior Judge Lush provided a clear and straight forward judgment on the issue of whether replacement attorneys under Lasting Powers of Attorney can be replaced by other replacement attorneys. (Warning: there is no escaping the frequent use of the term ‘replacement attorney’!) The woman executed a lasting power of attorney, appointing her husband as her sole attorney and then nominating three replacement attorneys, namely, each of her two sons and niece respectively for each to act alone, successively. The husband made an identical LPA but when they sent them to the Office of the Public Guardian they were informed that replacement attorneys could not replace other replacement attorneys. The OPG would only register the LPAs if the ineffective provisions were severed by the Court of Protection. The woman and her husband opposed the OPA’s application for severance.

The meaning of s 10(8)(b) of the Mental Capacity Act 2005 was not clear. It was striking that there was a complete absence in the legislative framework of mention of the possibility of a replacement attorney replacing another replacement attorney. Having regard to all the circumstances and the LPA scheme as a whole a replacement attorney could only replace the original attorney and not a replacement attorney. The provision appointing second and third replacement attorneys would, therefore, be severed.

I hope this column fulfils its intention to direct readers to cases which may need further investigation and to provide a general update on what is happening in the Court of Protection. Please do submit cases for consideration as appropriate to provide me with a plentiful supply of material!

Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for consideration via:

She can be contacted on Twitter: @ladybangham, or connect with her on LinkedIn.

The content of this article should not be considered as legal advice.

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