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Samantha Bangham’s Month in Cases: January 2014

Date:7 FEB 2014
Law Reporter

Samantha Bangham - Family Law Reporter Happy New Year! It is hard to believe that January has already flown (or blown!) by. To help you catch up here is a selection of this month’s highlights from the Court of Protection.

Starting us off is a judgment from December heard by Sir J Munby P in the Court of Protection, JO v GO and Others [2013] EWHC 3932 (COP), [2014] COPLR forthcoming, which concerned an 88-year-old woman who moved to Scotland where she was placed in a local authority care home. The local authority applied for a welfare guardianship order under the Adults with Incapacity (Scotland) Act 2000 on the basis that the woman was not habitually resident in Scotland but was present there anD the application needed to be heard urgently. The Sheriff made a welfare guardianship order and the local authority’s chief social worker was nominated as the welfare guardian with personal welfare powers. The woman’s daughter applied to the Court of Protection for an order to return her to England and Wales. The local authority sought a declaration that the Court of Protection had no jurisdiction to hear the application.

The question of whether the woman was habitually resident in Scotland for the purposes of para 7(1)(c) of Sch 7 to the Mental Capacity Act 2005 was essentially a question of fact. In these circumstances the decision to move was reasonably and sensibly undertaken with the agreement of three of the woman’s four children. She had now been in Scotland for some time and had settled into her new accommodation. She was not habitually resident and England and Wales and, therefore, the Court of Protection had no jurisdiction under para 7(1)(a) of Sch 7 to the Act.

Moving on to the subject of medical treatment, Hayden J gave judgment in NHS v VT and A [2014] COPLR forthcoming, in the Court of Protection in relation to a72-year-old man who suffered from a number of medical ailments including type II diabetes mellitus, he had suffered a stroke in 2000 and as a result experienced right-sided weakness, hypertension and chronic renal impairment. He was housebound and needed assistance with toileting and feeding which had so far been provided by his family.

When he suffered a cardiac arrest, he was left with only a very limited prospect of recovery and it was highly unlikely he would make any meaningful recovery to his communicative and motor function. He would remain dependent on PEG feeding and occasional ventilation. The consensus amongst the medical experts was that intensive care interventions would be wholly contrary to the central medical objectives of intensive care and, therefore, the NHS Foundation Trust applied for declarations it would be unlawful to provide intensive care in the event of a deterioration or collapse of the man’s condition; that would be unlawful to provide resuscitation following cardiac or respiratory arrest. The family strongly resisted the application largely on the basis of their firmly held Islamic faith.

Taking into account all of the circumstances of the case including the medical evidence and the strongly held views of the family, it was clear that to require the treating clinicians to treat the man in intensive care would be wholly futile and would be likely to cause distress with no positive medical benefit but would be life threatening in itself.

In a judgment from Hayden J, Re Whiting [2014] COPLR forthcoming, the court was engaged with contempt proceedings which were initiated during proceedings concerning a vulnerable adult who suffered from learning disabilities, whereby the court was asked to determine the appropriate care package including accommodation. When it came to light that the woman had entered into a relationship with a man who was convicted of a sexual offence relating to the exploitation of a vulnerable adult and an injunction was granted to protect her. The terms prevented the man from contacting her, attending her address and threatening unlawful violence against her.

When the local authority became aware that the man had breached the injunction an application for committal was made. He was alleged to have telephoned the woman, spoken to her in an aggressive manner, made verbal threats to her and to have encouraged her to visit him at his address. The allegations were found to have been loosely drafted, in particular, the actual dates of the alleged breaches were not certain. In addition one of the allegations was based on second hand hearsay. The drafting lacked the degree of specificity and that was required in this type of application. The local authority had not discharged the burden of proof beyond reasonable doubt and the application for committal would be refused.

In the case of IM v LM and Others [2014] EWCA Civ 37, the Court of Appeal was engaged with proceedings regarding a woman’s capacity to consent to sexual relations. When the woman, who had led a chaotic life with an extensive history of drug and alcohol abuse, was admitted to hospital for surgery she suffered a cardiac arrested leaving her with a hypoxic brain injury. She was placed in a specialist unit for extensive rehabilitation.

Proceedings in the Court of Protection were initiated by the woman’s partner who due to inappropriate behaviour had been barred from the specialist unit and restricted in his contact with the woman. During the proceedings the issue of capacity to consent to sexual relations arose and a consultant psychiatrist reported that the woman wished to resume sexual relations with her partner and that unsupervised contact might trigger sexualised behaviour. The judge, however, concluded that although the woman understood the rudiments of the sexual act her weakest ability was in her understanding of the implications of pregnancy. Despite that shortcoming he concluded that she had capacity to consent to sexual relations. The mother appealed on the basis that the judge applied the incorrect legal test.

The Court of Appeal held that that the approach taken in the line of first instance decisions including Re MM; Local Authority X v MM & KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represented the correct approach within the terms of the Mental Capacity Act 2005. That approach was not at odds with the view of Baroness Hale of Richmond in Regina v Cooper [2009] UKHL 42. The appeal was dismissed.

Finally, in another judgment from the President, RC v CC (By Her Litigation Friend, the Official Solicitor) [2014] EWHC 131 (COP), the court was concerned with a young woman, who lacked capacity, and was adopted as a young child. For many years her mother had indirect letter box contact with her but now sought direct contact. The local authority in which the woman lived prepared a report including reports from a psychologist and three social workers. The issue of whether the she should be permitted to see the reports arose and in [2013] EWHC 1424 (COP), [2013] COPLR 431 and His Honour Judge Cardinal held that while she should be permitted to see a redacted version of the psychologist report she should not be permitted to see the social worker reports. The woman, via the Official Solicitor, appealed.

In cases such as this the authorities were clear that the crucial factor was the potential harm in the person having sight of the information. The judge had correctly identified the test as being one of strict necessity. There was nothing objectionable in relation to his decision as to the psychologist report but with regard to the social work reports there were deficiencies in the judge’s reasoning and he had failed to consider all the options available to the woman for seeing the content of the reports. The appeal was partly allowed and the decisions pertaining to the social work reports set aside. The case was remitted to His Honour Judge Cardinal for reconsideration.

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Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for consideration via: editor@familylaw.co.uk.

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.