Browne Jacobson - Elderly Care Conference 2016 - Workshop Stream A, Capacity and safeguarding

Elderly Care Conference 2016
Capacity and safeguarding

Capacity and safeguarding
21 April 2016
Birmingham
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Relationships and
Contact
Debra Powell
Serjeants’ Inn Chambers
London EC4Y
dpowell@serjeantsinn.com

Best interests
• If an elderly person is losing mental capacity
to make decisions about their life,
relationships may become difficult to manage
• If the person lacks capacity to make decisions
about contact with family members or others,
decisions must be made in their best interests
• Under s.4 Mental Capacity Act 2005

Best interests
• Under s.4(4) those making decisions must, so
far as reasonably practicable, permit and
encourage the person concerned to
participate as fully as possible in any decision
• And must consider
• the person’s past and present wishes and feelings
• the beliefs and values that would be likely to
influence his decision
• other factors that he would be likely to consider

Best interests
• And must also consider, if it is reasonably
practicable to consult them, the views of
• anyone named as someone to be consulted
• anyone engaged in caring for the person or
interested in his welfare
• as to what would be in the person’s best
interests and as to the matters previously
mentioned

Judicial guidance
• ITW v Z [2009] EWHC 2525 (Fam) Munby J:
• there is no hierarchy as between the various
factors which have to be borne in mind
• “best interests” is the overarching principle
• the weight to be attached to various factors will
differ from case to case, a factor carrying great
weight in one case may carry much less or little in
another, superficially similar, case
• There may be one or more factors that are of
“magnetic importance”

Judicial guidance
• the person’s own wishes and feelings will always
be a significant factor to which close regard must
be paid
• the weight to be attached to those wishes and
feelings will be fact specific and issue specific
• in considering the weight to be attached to them
regard must be had to the relevant circumstances

Judicial guidance
• Relevant circumstances include:
• the degree of incapacity
• the strength and consistency of views being expressed
• the possible impact of the person knowing that his
wishes are not being given effect to
• the extent to which those wishes are rational, sensible,
responsible and pragmatically capable of sensible
implementation
• the extent to which those wishes, if given effect to, can
properly be accommodated within the overall
assessment of what is in his best interests.

Article 8
• The positive obligation to respect the right to
family life in the area of adult care is reflected in
numerous domestic and European cases, e.g.
Hillingdon LBC v Neary [2011] EWHC 413 (COP)
• Restrictions on contact with family and friends are likely
to amount to an interference with the person’s rights
under Article 8, which must be objectively justified
• There must be a proper factual basis for concerns about
risk of harm (e.g. Milton Keynes Council v RR [2014]
EWCOP B19)

Article 8
• Local Authority X v MM [2007] EWHC 2003 (Fam)
Munby J:
“… the law must always be astute to protect the weak and helpless, not
least in circumstances where, as often happens in such cases, the very
people they need to be protected from are their own relatives, partners
or friends. …
… The court … is entitled to intervene to protect a vulnerable adult from
the risk of future harm – the risk of future abuse or future exploitation –
so long as there is a real possibility, rather than a merely fanciful risk, of
such harm. But the court must adopt a pragmatic, common sense and
robust approach to the identification, evaluation and management of
perceived risk.”

The importance of family life
• Bedford Borough Council v Mrs C and Mr C
[2015] EWCOP 25
• PB v RB and A London Borough and others
[2016] EWCOP 12

Mental Disability Law Update-
Elderly Care Conference
21 April 2016
Rebecca Fitzpatrick, Partner

Content of today’s session
• HL Select Committee 2014 – what progress has been made since?
• Landmark ruling re withdrawal of ANH: M v N, Bury CCG & A Care
Provider (2015)
• Back to basics! Kings College Hospital NHS Foundation Trust v C
(2015) and WBC v Z & Ors (2016)
• More emphasis on P’s views when assessing best interests - Wye
Valley (2015)
• Deprivation of Liberty update
• Interaction between DoLS and MHA update
• Recap – themes and trends

House of Lords Select Committee 2014
“MCA: a visionary piece of legislation with potential to
transform the lives of many. However, its
implementation has not met the expectations that it
rightly raised. The Act has suffered from lack of
awareness and a lack of understanding. The empowering
ethos has not been delivered. The rights conferred by the
Act have not been realised”

CQC State of Care Report October 2015
“We have seen variable staff understanding of the MCA. In a
number of cases staff did not understand they should be applying
the requirements of the MCA in their roles. In some cases there
was lack of adequate training for staff in these areas. There was
varied understanding, for example, of when an assessment of
capacity needed to be made and how a decision was to be made in
a patient’s best interests under the MCA, when they did not have
the capacity to consent to treatment”

MCA Progress over the last year
• CQC has hardwired MCA to inspectors
• MCA element incorporated into foundation training for all
doctors
• MCA a core part of new social work knowledge and skills
statement
• New online resource and store of key practice support
materials: http://www.scie.org.uk/mca-directory
• New resources include self improvement/audit tool, guide to
commissioning for MCA compliance (NHS & social care) & pocket
sight MCA cards: http://www.scie.org.uk/mca-
directory/keygovernmentdocuments.asp

MCA & withdrawal of artificial
nutrition and hydration
Landmark Ruling Nov 2015

The Position previously: W v M (2011) EWHC
2443 (Fam)
• W applied for a court order authorising the withdrawal of
ANH from her daughter M who was in a minimally
conscious state
• When M was 43 she suffered viral encephalitis and went
into a coma never recovering consciousness and left with
irreparable brain damage
• Initially it was thought she was in PVS but further
assessments demonstrated she was in MCS

W v M (2011) EWHC 2443 (Fam)– contd
• W submitted that M’s experiences were predominantly negative and
that considering her wishes and feelings before her illness and those
of her family, the withdrawal of medical treatment was in her best
interests under the MCA
• The OS however submitted that where a person was in MCS and was
otherwise clinically stable, it could never be in their best interests
and therefore lawful to withhold life sustaining treatment, or
alternatively a balance sheet approach was applicable and came
down in favour of continuing treatment

Held
• While the court was under an obligation to consider M’s wishes and
feelings, the MCA test was not what M would have decided if she had
capacity, but an objective test as to what would be in her best
interests
• All decisions about the proposed withholding or withdrawing of ANH
from a person in PVS or MCS should always be brought to the court
• Any statements made by M before her illness were informal and she
had not made any advance decision to refuse treatment
• A balance sheet approach should be followed (as per Bland) in all
cases save for where the patient is in PVS and treatment considered
futile

Held
• M was conscious albeit minimally, was clinically stable and able to
respond to her environment in a very limited way
• The preservation of life carried great weight in the balancing
exercise. It was wrong to attach significant weight to statements
made by M before her illness. M experienced some positive
experiences as well as pain and suffering
• The importance of preserving life was the decisive factor and it was
not in M’s best interests for treatment to be withdrawn

Supreme Court – Aintree University Hospitals NHS
Foundation Trust v James [2013] UKSC 67
• David James (68 yo) - admitted to hospital in May 2012
• Diagnosed with pneumonia and COPD – deteriorated & admitted to ITU.
• July 2012 – suffered stroke (MCS)- no capacity
• Remained on unit - condition fluctuated, severe setbacks (incl. a cardiac
arrest & multi-organ failure). Recurring infections. Ventilator dependent.
• Clinical team sought to withhold:
• CPR
• Invasive support for circulatory problems
• RRT
• Family wanted – “treatment at all costs”

Supreme Court – Aintree University Hospitals NHS
Foundation Trust v James Contd
• When considering whether a treatment offers a prospect of recovery,
“recovery” does not mean a return to full health, but the resumption of a
quality of life which the patient would regard as worthwhile.
• Assessment of the medical effects of a treatment is only one part of the
equation - great weight had to be given to Mr. James’ family life. The
purpose of the “best interests” test is to consider matters from the
patient’s point of view, and it is those wishes, which must be taken into
account.
• “…decision makers must look at his welfare in the widest sense, not just
medical but social and psychological” (Lady Hale)

M v N, Bury CCG & A Care Provider [2015]
EWCOP 76
• Daughter M applied for a declaration that it was in her mother’s
(N) best interests for ANH to be withdrawn
• N aged 68 profoundly physically & cognitively impaired due to
progressive degenerative impact of MS
• The medical experts agreed N could fix and track objects within
her line of vision and that while some pragmatic adjustments could
be made to improve her quality of life, such measures could only
be described as palliative care
• However N clinically stable and could live for up to 5 years
• Family evidence: N would not have wanted to live like this or for
ANH to continue. N had not made an advance decision.

M v N, Bury CCG & A Care Provider [2015]
EWCOP 76
HELD
• Where P’s wishes and feelings could be ascertained with reasonable
confidence, they had to be afforded great respect. The Act & Code placed
great emphasis on the importance of personal autonomy. The central
objective was to avoid a paternalistic approach; an individual’s right to
self-determination existed alongside the presumption of the prolongation
of life.
• The presumption of life could be rebutted on the basis of a competent
adult’s cogently expressed wish. It followed that the importance of an
incapacitated person’s wishes and feelings, communicated via family or
friends with similar cogency and authenticity, were to be afforded no less
significance.

M v N, Bury CCG & A Care Provider [2015]contd
HELD
• As P was in MCS, an evaluation of best interests had to involve a
proper identification of the advantages and disadvantages of each
proposed course. However if P was in PVS that balance sheet
approach did not apply. Even very limited cognitive function as
here, appeared inconsistent with PVS.
• Where some level of awareness remained, a decision to withdraw
treatment should only be made after a full analysis of P’s best
interests
• No “right to die” as such exists: what was in issue was N’s right to
live her life at the end of her days as she would have wished

M v N, Bury CCG & A Care Provider [2015]contd
HELD
• The inviolability of life had to be weighed against an individual’s
right to self determination and personal autonomy: individuals’
choices had to be respected
• There was no prospect of N achieving a life that she would
consider meaningful, worthwhile or dignified. Her wishes coupled
with the intrusive nature of the treatment and its minimal
potential to achieve any medical objective rebutted any
presumption of continuing to promote life. It would be
disrespectful to N to preserve her life further in a manner she
would regard as grotesque.
• The application was therefore granted

Allow Huntington's disease sufferer to die,
judge rules
• P in advanced stages of disease & had pulled out feeding tube more than
100 times. Relatives believed ‘he wanted to go’
• A consultant neurologist said it would not be right – and futile – for medics
to force the feeding tube on the man.
• Hayden J concluded that the tube should not be reinserted, even though
this would hasten P’s death: re-inserting a feeding tube would involve
restraining P. That would be disrespectful and “compromise” his dignity.
• P had enjoyed many interests, was a passionate supporter of Manchester
United – his aunt told how he used to regularly visit Old Trafford. A doctor
told the court the man still smiled on hearing United’s name, and that a
recent mention of Everton had “produced a frown”.

Allow Huntington's disease sufferer to die,
judge rules
“There is a strong instinct throughout the medical profession, and far
more broadly, to preserve life wherever possible,” “But that is not a
value that stands alone and in splendid isolation….it is to be
considered against a whole raft of other important issues – respect
for the dignity and autonomy of the individual and respect for their
wishes.”

MCA & Assessing Capacity – don’t
forget the basics
Importance of personal autonomy & evidence
of inability to weigh in the balance

KINGS COLLEGE HOSPITAL NHS FOUNDATION TRUST v C
& V [2015] EWCOP 80
“Revealed: Truth about the socialite
who chose death over growing old
and ugly... and the troubling questions
over a judge's decision to let her do it”
(Mail Online)

& V [2015] EWCOP 80
• C – a woman described as having lived a full and sparkly life was refusing
life sustaining renal dialysis.
• Her decision was supported by her family
• C considered as part of decision, prospect of growing old, living with
fewer material possessions and the fear of never regaining her “sparkle”
• C had previously attempted suicide
• Two Trust psychiatrists assessed C as lacking capacity to make this
decision as did an independent expert

& V [2015] EWCOP 80
Judge considered:
• Back to basics: key MCA principles of the presumption of capacity and the
right to make what others might consider to be unwise decisions
• The Trust had failed to evidence lack of capacity with regards to the
functional aspect of weighing information
• In his view C had weighed her fear of ongoing treatment, chronic illness,
discomfort, disability and not regaining her sparkle within her decision
making process
• Whilst decision may seem eccentric and not accord with society’s
emphasis on the sanctity of life, this was not evidence of incapacity

& V [2015] EWCOP 80
• C did not lack capacity to refuse treatment merely because her decision
might generally be regarded as unwise.
• Although the medical evidence indicated that she suffered from a
personality disorder which might be classed as an impairment in the
functioning of her mind, she appreciated that her prognosis was positive if
she maintained the treatment and had been able to use that information
and weigh it in the decision-making process.
• Judge emphasised requirements of the functional assessment of capacity –
what evidence is there of an inability to make the decision in question? +
the need for full information about the person concerned

WBC v Z & Ors (2016)EWCOP4
• Z - 20 year old woman with Asperger's, borderline learning
disability & IQ in the range 70/75. Lived at home but aspired to
live independently
• 2012 - dropped out of college and became depressed, started to
display risky behaviours and became sexually disinhibited
• Allegedly abused and exploited by men she met over the internet
• There was a genuine concern about sexual exploitation.
• Received some support and appeared to show some insight into the
risks of her behaviours – which she did not always apply into
practice
• LA sought declarations as to Z’s capacity to residence, care &
contact

WBC v Z & Ors (2016) - The heart
of the question
• The application of the functional element of the test for capacity,
specifically Z’s ability to “use or weigh” information about risk to
herself, her ability to keep herself safe in independent living and
in her social contacts
• Reminds us P only has to use or weigh the salient factors, not
every detail of these questions
• And is she any different to other young adults learning from
negative experiences?

WBC v Z & Ors (2016) contd
“It is well known that young people take risks”
• But it is necessary to separate out evidence which indicates
unhealthy, dangerous, unwise risks from those which reveal a lack
of capacity
• Presumption of capacity not rebutted – a difficult decision but
“it is tempting for the court to take a paternalistic, perhaps overly
risk-averse, approach to Z’s future; but this would be unprincipled
and wrong.”

WBC v Z & Ors (2016)EWCOP4
• The court heard from Z in person, and was satisfied that
“the passage of time and Z's greater maturity, coupled with some
support from Dimensions and enhanced self-esteem through her
music, Z appears to have matured, learned from her mistakes,
and developed sufficiently in her capacity to make relevant
decisions, and keep herself safe.”
• The presumption of capacity was not rebutted, and the
declarations sought by the local authority were refused.

MCA & Best interests – taking into
account P’s views and wishes
Increasing emphasis on this in recent cases

Wye Valley NHS Trust v B (2015)
• Mr B – 73 y/old man. Long standing mental illness – lacked capacity in
respect of medical treatment
• Severely infected leg – surgeon recommended amputation to save his life
• Court considered not just MCA but also ECHR:
– Article 2 – “right to life”
– Article 3 – no-one shall be subject to inhuman or degrading treatment
– Article 9 – right to freedom of thought, conscience and religion
• Starting point – in a person’s best interests to stay alive – but not absolute
• Purpose of best interests test is to consider matters from P’s point of view
(per Baroness Hale in Aintree v James)
• And once incapacity established there is no theoretical limit to the weight
or lack of weight which should be given to P’s wishes and feelings, beliefs
and values

Re B 2015
Medical interest clear but …
• B opposed in strongest terms
• Would need sedation to overcome resistance, inc post op
(and rehab – for rest of life - needs co-operation)
• Surgery couldn't return him to former life, or living
independently
• “the loss of his foot will be a continual reminder that
his wishes were not respected…”

Re B contd
• “I am quite sure that it would not be in Mr B’s best
interests to take away his little remaining
independence and dignity to replace it with a future
for which he understandably has no appetite and which
can only be achieved after a traumatic and uncertain
struggle that he and no one else would have to endure.
• There is a difference between fighting on someone’s
behalf and just fighting them. Enforcing treatment in
this case would surely be the latter”

Best interests
• “a conclusion that a person lacks decision-making capacity is not
an ‘off-switch’ for his rights and freedoms” Wishes and feelings of a
person with a long standing mental illness is an inextricable part of the
person he is:
“It is more real and more respectful to recognise him for who
he is: a person with his own intrinsic beliefs and values”
• Mr B described as having “religious delusions” – but they are
extremely important to him (hence engagement of Article 9)
• Jackson J met with Mr B
• Agreed Mr B lacked capacity

Best interests
• Not in Mr B’s best interests to undergo an amputation
• Religious beliefs do not deserve to be termed “delusions” –
they are deeply meaningful to him
“I would not define Mr B by reference to his mental illness or
his religious beliefs. Rather, his core quality is his ‘fierce
independence’, and it is this that is now, as he sees it, under
attack”

Following Cheshire West
• Surrey County Council v P and others, Cheshire West and
Chester Council v P and another [2014] UKSC Civ 190 clarified
the test to be applied for deprivation of liberty where ‘P’ lacks
capacity to consent to this -‘under continuous supervision and
control and not free to leave’
• MOJ figures reveal 1,499 deprivation of liberty cases reached Court
of Protection last year, up from 525 in 2014
• Re X test cases- development of streamlined process for CoP
applications to be dealt with on the papers for uncontested
community patient cases
• Re X procedure: P need not be a party to proceedings in every
case

Re X Saga Continues
• Re X, Court of Appeal- Sir James Munby’s rulings were a procedural
nullity, had no effect and in any event he had erred in finding that
P did not need to be joined as a party in all DoL cases.
• Re NRA and Ors [2015] EWCOP 59, Charles J:
– P’s wishes and feelings need to be known to the Court without
causing P unnecessary distress
– With P’s best interests in mind assess pros and cons of proposed
care package
– Review care package and P’s changes in behaviour or health
• Left Re X process in doubt but…

JM and others [2016] EWCOP 15
• Emphasised importance of Rule 3A representatives who could plug
the gap- “assistance from someone on the ground who considers
the care package through P’s eyes”
• Suggested where no one to speak for P, proceedings should be
stayed until this could be resolved
• Critical of Secretary of State- “avoidant approach that priorities
budgetary considerations over responsibilities to vulnerable
people”

DoL in Intensive Care
• LF v HM Coroner for Inner South London
• Judicial Review of coroner’s decision not to hold a jury inquest
into death of 45 y/old woman
• Maria, Down’s syndrome. In hospital for pneumonia for 3 weeks,
the last week of which was in ICU
• Coroner decided she was not in “state detention” for purposes of
Coroners and Justice Act 2009
• The Court agreed – albeit with slightly different emphasis from the
2 judges

LJ Gross
• Focussed on the context of Cheshire West, i.e. scrutiny of long
term living arrangements
• This should not be “mechanistically” applied in the case of acute
medical treatment
• There is no serious debate about treatment and no active
resistance from the family about that treatment
• The intention (purpose?!) is to discharge Maria once safe to do so
• Interestingly – no need to hypothesise about what would happen if
someone tried to remove her

Charles J
• Focussed more on the CJA definition of “state
detention”, which requires “compulsory detention”
• Not applicable in this case where detention is in best
interests rather than over-riding a person’s informed
freedom of choice
• Also agreed – lack of dispute about treatment needs,
treatment was based on her best interests and the
physical disorder affected her treatment needs and the
restrictions on her that this imposed

LF v HM Coroner for Inner South London
“Maria remained in the ICU not because she had been detained or
deprived of liberty but because for pressing medical reasons and
treatment she was unable to be elsewhere”
• A welcome judgment
• But is it right?
• Echoes of pre (Supreme Court) Cheshire West reasoning for no
DoL:
– Purpose/motive of treatment/regime
– No available alternatives?
– No objections?
– Consensus of treatment
Watch this space…..

Birmingham City Council v D (January 2016)
• March 2015 – Trust A v X and A Local Authority, Keehan
J:
– 15 y/old boy “D”
– ADHD, Asperger’s, Tourette’s and learning disability
– Under continuous supervision and control and not
free to leave
– Not an unlawful DoL as arrangements were with
parental consent
• D turned 16 only 24 days later

Birmingham City Council v D (January 2016)
• D discharged from hospital to a residential placement
in June 2015
• Care package still amounted to continuous supervision
and control and he was not free to leave
• Lacked capacity to consent to welfare arrangements in
place
• LA argued that could still rely on parental consent
• OS disagreed (and Judge had been wrong to find as
such before)

Keehan J
• Things are different when a young person turns 16
• Not enough to rely on parental consent where the acid test is met in a 16
y/old – will always need a CoP application
• Judge rejected the LA’s arguments that the resource implications of such
a finding were huge:
“The issue of the resource implications is a matter for the local authority
and, ultimately, the Government; it is not, should not and, in my judgment,
cannot be a relevant consideration for this court. The protection of the
human rights of those with disabilities or the vulnerable members of our
society, most especially in respect of the protection afforded by Article 5
(1), is too important and fundamental to be sacrificed on the altar of
resources”.

Not imputable to the State?
• Secondary argument of LA that as the placement was
made under s. 20 Children Act (with parental consent),
it was the parents, not the State that was responsible
for the DoL
• Keehan J rejected this on the facts
• And on principle – accepting the OS’ submission that
even if D’s confinement was a purely private affair, the
State has a positive obligation under Article 5(1) to
protect him

Reflecting on SS v RB
• Difficult to discharge restricted patients who lack
capacity from detention under the MHA 1983
• Often require robust conditions in the community that
amount to a DoL
• Court of Appeal decided it was unlawful for a tribunal
to discharge from MHA detention into effectively what
amounted to community detention in SS v RB
• It was not true “discharge” from detention

SS for Justice v KC &
Partnerships FT [2015]
• Considered this issue again of conditional discharge to
circumstances that may constitute a DoL where P lacks capacity
• Decision approves the use of authorisation under MCA 2005 with
DoLS running alongside conditional discharge
• KS was a restricted patient who lacked capacity to make decision
on residence and care. Tribunal made provisional decision to
discharge subject to the following conditions
1. Residence at placement, not to leave premises unsupervised by
staff
2. Comply with care plan & supervision
3. Accept psychiatric & social supervision
4. Refrain from drinking alcohol & submit to testing

Common pit
• The Aintree Supreme Court ruling in 2013 established that great
weight must be given to considering P’s point of view and wishes,
when determining what is their best interests
• We are starting to see an arguable shift towards a substituted
judgment test in the most clear cut of cases reflected in wider case
law, including withdrawal of treatment or ANH and other decisions
re life sustaining treatment ; the inviolability of life must be
weighed against an individual’s right to self determination and
personal autonomy
conclusion …

Common pit
• It is essential that practitioners establish P’s wishes & those of their
family/carers wherever possible and give those views due weight as
part of the decision making process where P lacks capacity
• Beware of being overly paternalistic/trying to do “the right thing”
when assessing best interests without following the correct MCA
process in terms of the factors to be considered
• Remember the basics, particularly when assessing capacity – where
is your evidence as to the impact of any impairment of mind on P’s
ability to weigh relevant issues in the balance?
conclusion …

Common pit
• The Re X procedure should still be used for community patients, but
proceedings may be stayed where no one can be found to speak for
P.
• Instruct Rule 3A representatives where appropriate and ensure P’s
voice is heard
• DoL for 16 and 17 year olds requires court approval
• The jury is still out re whether DoL applies to ICU pending Court of
Appeal ruling…but for now can argue does not apply
• Is lawful to have a DoL running alongside a conditional discharge of
a patient detained under the MHA
conclusion on DoLS…

keep your questions
coming…
rebecca.fitzpatrick@brownejacobson.com
0161 300 8050
www.bjhealthlawyers.com

April 2016
Alex Ruck Keene
Barrister, 39 Essex Chambers
Honorary Research Lecturer at the University of Manchester
Visiting Research Fellow, Dickson Poon School of Law, Kings College
London
alex.ruckkeene@39essex.com
www.mentalcapacitylawandpolicy.org.uk
Capacity and Safeguarding:
avoiding the car crash

Capacity and safeguarding – the challenge
104. The empowering ethos of the Act has not been widely implemented. Our evidence
suggests that capacity is not always assumed when it should be. Capacity assessments
are not often carried out; when they are, the quality is often poor. Supported decision-
making, and the adjustments required to enable it, are not well embedded. The concept of
unwise decision-making faces institutional obstruction due to prevailing cultures of risk-
aversion and paternalism. Best interests decision-making is often not undertaken in the
way set out in the Act: the wishes, thoughts and feelings of P are not routinely prioritised.
Instead, clinical judgments or resource-led decision-making predominate. The least
restrictive option is not routinely or adequately considered. This lack of empowerment for
those affected by the Act is underlined by the fact that many responsible for its
implementation continue to consider it as part of the safeguarding agenda.
105. The presumption of capacity, in particular, is widely misunderstood by those involved in
care. It is sometimes used to support non-intervention or poor care, leaving vulnerable
adults exposed to risk of harm. In some cases this is because professionals struggle to
understand how to apply the principle in practice. In other cases, the evidence suggests
the principle has been deliberately misappropriated to avoid taking responsibility for a
vulnerable adult.
(House of Lord Select Committee post-legislative scrutiny of MCA 2005)

Damned if you do and damned if you don’t?
Contrast LGO/PHSO reports into:
(1) RK: 77 year old man: issue over capacity to decide whether to return home
to die, assumption of incapacity and actions taken to prevent him returning
home to squalid conditions (complaints 94049 / 11020887 and 11020888
(2) South Essex Partnership University Trust and Bedford Borough Council.
Man with paranoid schizophrenia who was living in a flat in squalor. Poor
self-care and inadequate diet. Failure to carry out a proper capacity
assessment of his ability to make decisions about managing food and
looking after himself was a service failure. Thus, the presumption of mental
capacity resulted in him being malnourished. A joint payment of £2000 for
the impact of failing to properly assess his capacity and £500 to his sister for
distress and inconvenience was recommended (JW 111510 and 11010604)

The car-crashes: safeguarding and the COP
• A Local Authority v HS & Ors [2013] EWHC 2410 (COP): £83,000 costs
• Somerset v MK [2014] EWCOP B25: damages not quantified (yet); and [2015]
EWCOP B1 indemnity costs
• Milton Keynes Council v RR [2014] EWCOP B19 and [2014] EWCOP 34: costs
• Essex CC v RF [2015] EWCOP 1: £60,000 damages, care home fees waived:
£23-£25,000, costs.

When to go to the Court of Protection in the
safeguarding context (1)
• Where a local authority is unable to gain access to discharge an inquiry duty
under s.42 Care Act or to assess an individual whom they have proper
grounds to believe may lack capacity to decide as to such matters as their
residence or care arrangements, contact with a third party, or whether that
third party should continue to live with them;
• Where a public authority wishes to remove a person lacking capacity from
their home: Re AG [2015] EWCOP 78: “Local authorities must seek and
obtain appropriate judicial authority before moving an incapacitous adult from
their home into other accommodation. Local authorities do not themselves
have power to do this;”
• Where a public authority wishes to prevent a person lacking capacity leaving
accommodation arranged for them and there is a genuine dispute about
where it is in the best interests of that person to live: do not seek to ‘stifle’ that
debate using statutory mechanisms (Neary)

When to go to the Court of Protection in the
safeguarding context (2)
In short, whenever a public authority is unable to
discharge its obligations towards the individual
without judicial sanction

Remember – the COP is a court
• Obvious, but vitally important implications:
• It can only take decisions upon the basis of facts that are either
accepted or proved;
• It is the master of its own procedure;
• It is bound to act compatibly with the European Convention on
Human Rights.

Necessary steps in ‘adult protection’ cases
• No threshold aka s.31 Children Act for care order being made, but in practice,
appropriate to proceed as if there were
• So: in all cases: before going to court:
• A considered decision is made whether evidence being put before the Court is
sufficiently cogent;
• A proper check is made on the sources of information forming the foundation
of the decisions being made are checked so as to allow an assessment to be
made about its reliability. “The fact that a piece of information has been
repeated many times does not enhance its reliability;”
• Where orders are being sought that interfere with rights under Article 8 ECHR,
a balanced picture is put to the court, rather than one presenting solely the
negative information or the facts cast only in a negative light; and
• Proper consideration is given to whether it is necessary to put the allegations
to the alleged abuser before taking steps upon the basis of those allegations.
• The horns of the dilemma – urgent applications

Keeping yourself up-to-date
• http://www.39essex.com/resources-and-
training/mental-capacity-law/
• http://www.scie.org.uk/mca-directory/
• www.mclap.org.uk
• www.mentalhealthlaw.co.uk
• www.courtofprotectionhandbook.com

Coffee
Tweet about the conference
#ECC_2016

Browne Jacobson - Elderly Care Conference 2016 - Workshop Stream A, Capacity and safeguarding

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Browne Jacobson - Elderly Care Conference 2016 - Workshop Stream A, Capacity and safeguarding

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