• 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.

Please get in touch if you have any questions or wish to

discuss the topics we covered further…

neil.ward@brownejacobson.com | +44 (0)121 237 3927