Public Law Newsletter: Jul 23
Cheshire and Wirral Partnership NHS Foundation Trust v JMC & Flintshire County Council  EWCOP 14 (20 April 2023)
This case concerned an application for permission to appeal a case management decision made by District Judge Hennessy on 26 October 2022, which ordered the preparation of a report pursuant to section 49 of the Mental Capacity Act 2005, in relation to JMC, a 72-year-old man with an established diagnosis of alcohol amnesic syndrome and dementia and a lengthy history of alcohol misuse and self-neglect.
The report was to be prepared by a person nominated by the Trust and considered to have the appropriate expertise/knowledge to provide the report, and was to address:
- An update regarding JMC’s mental health and medication needs together with a review of whether the current arrangements meet his care and treatment needs, arising out of his alcohol related brain damage, as previously recommended by the Trust. If not, recommendations are sought as to the environment and intervention required to optimise his quality of life, recovery and opportunity for independence;
- With input from occupational therapy with expertise in functional mental health (as opposed to a functional assessment of ability to engage in activities of daily living) insofar as an individual with the requisite expertise is employed by the Trust.
The context of this case management order was that the Trust had prepared two earlier section 49 reports in respect of JMC dated August 2018 and June 2019, for the purposes of previous section 21A proceedings. The recommendation of the second report was for the Trust to continue to work with JMC for a further period of six months, and for the Trust to provide the court with a “more definitive long term social prognosis” in relation to the potential for a move to an alternative residential setting thereafter. On this basis, the previous section 21A proceedings concluded. However, no further report was subsequently received from the Trust. JMC was discharged by the Trust in April 2020, and the Trust declined on clinical grounds subsequent referrals made on JMC’s behalf.
The Trust contended that the judge had erred in law:
- By misapplying the relevant factors contained in Practice Direction 14E;
- By concluding that the matters to be addressed fell within the remit of the Trust (as opposed to the Local Authority);
- By requiring the Trust to provide healthcare services to JMC in circumstances where it had already decided not to do so (and had thus discharged him), contrary to N v A CCG  UKSC 22; and / or
- By not limiting the report to a review by the Trust based on information already within its possession or control.
The Local Authority and the ALR on behalf of JMC opposed the Trust’s application for permission to appeal.
In his judgment, Hayden J had regard to Practice Direction 14E and his own December 2022 Guidance. He set out that, in December 2022, he had met with the NHS Mental Health Directors relating to concerns about the burden experienced by the medical profession in reports requested pursuant to Section 49, and that “there was a clear and strong feeling that some of the Section 49 requests were becoming disproportionate, overly burdensome, and wrongly authorised.”
Hayden J concluded that:
- The Court of Protection’s jurisdiction is non-adversarial and inquisitorial, requiring a broad (but not unfettered) margin of discretion in eliciting information necessary to illuminate the Court’s decision;
- The “common factors” identified in Practice Direction 14E are permissive and not mandatory;
- Whilst the December 2022 Guidance identifies circumstances in which a section 49 report would “paradigmatically” be made, it would be a misreading of that guidance to interpret a paradigm as if it were a rigid and unchanging template;
- It would be a distortion of the plain words of the statute to conclude that the order for a section 49 report triggered a direction to the Trust to provide services (as opposed to information);
- In general, an Appellate Court will rarely interfere with case management decisions unless it is satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a wrong decision.
Further, Hayden J agreed with the ALR’s assertion that a report from the Trust under section 49 was more appropriate than an independent expert instruction, due to the Trust’s pre-existing knowledge of JMC, its previous promise to provide a further report, and its ability to provide a longitudinal and multidisciplinary view of JMC’s needs.
Ultimately, permission to appeal was refused.
Manchester University Hospitals NHS Foundation Trust v JS & Anor  EWCOP 12 (18 April 2023)
This case deals with eligibility for detention under Schedule 1A MCA.
The case involves a 17-year-old, JS, who was diagnosed with autistic spectrum disorder, attention deficit hyperactivity disorder, a learning disability, and an attachment disorder. JS had complex mental health needs, and was vulnerable to self-harm. She was admitted as an informal psychiatric inpatient to a specialist hospital in December 2022, and was discharged home in January 2023. She was subsequently detained under s.136 MHA on two occasions in quick succession. On the second of those occasions, she was detained under s.2 MHA to a general adult acute hospital ward, to be treated for the physical consequences of an overdose.
When her s.2 MHA detention expired in February 2023, JS was physically fit for discharge, but remained in hospital in the absence of a safe discharge destination, in circumstances which amounted to a deprivation of her liberty. The Trust made the application to the Court of Protection to authorize JS’s deprivation of liberty in hospital under the MCA, having refused to detain her under s.3 MHA. The issue was whether the Court of Protection had the authority to detain JS, if she ought to be detained under the MHA.
HHJ Burrows accepted that JS lacked capacity to make decisions regarding her residence and care. Similarly, he accepted that remaining where she was, despite it not being the best environment for her, was the best available option while professionals developed a robust care package to facilitate JS’s return to her mother’s case. He was however concerned that JS may fall into Case E of Schedule 1A MCA, and thus be ineligible to be deprived of her liberty under the MCA.
For someone to be ineligible under Case E the relevant person:
- Has to be within the scope of the MHA, and
- Paragraph 5, Schedule 1A MCA must be satisfied (i.e. the patient must object to some or all of the mental health treatment).
The relevant person is “within the scope of the MHA” if:
- An application in respect of P could be made under s.2 or s.3 MHA, and;
- P could be detained in a hospital in pursuance of such an application, were one made.
Ultimately, the court found that JS was within the scope of the MHA and was thus ineligible for detention under the MCA. The reasons were given at [90-96] of the judgment, and can be summarised as follows:
- The judge disagreed with the argument that JS did not need inpatient medical treatment after her overdose because she was no longer physically harmed. The judge stated that JS needed to be safely nursed and medicated for her mental disorder, which made her a danger to herself and others.
- The argument that JS’s mental disorder did not require medical treatment in a hospital was rejected by the judge. The medical treatment JS was receiving was necessary to keep her safe and prevent her from harming herself, and there was no other alternative available at the time.
- The judge disagreed with the argument that inpatient care was not necessary for JS’s condition and that she could be treated in the community. The judge stated that until a suitable package of care was available for the patient, she could not safely leave the hospital.
- The judge held that patients detained under the MHA could only be discharged into the community with a suitable package of care. However, it can take weeks or months to put together such a package, and until then, patients remain detained. The s.117 process is designed to speed up the process of providing aftercare to ensure that patients are discharged from the hospital and do not return.
- The judge rejected the hospital’s argument that detaining the patient under the MHA would harm her mental health and that keeping her in the hospital for a day longer than necessary was invalid. The judge stated that the label given to the care plan was irrelevant and that JS was detained for treatment regardless of the jurisdictional label.
- The judge stated that good clinical practice and the operation of Article 5 of the European Convention required a patient to be detained only for as long as necessary, and the MHA did not prolong detention. Proper use of s. 117 should reduce the overall time a patient spends in the hospital because professionals should work together to put together an effective discharge plan quickly.
- The judge stated that the decision to use the MHA should not be viewed in isolation from what is available elsewhere at the time the decision is taken. If a patient needs to be detained for treatment for their mental disorder, and there is no alternative outside the hospital setting, and no other treatment plan available, JS should not be detained under the MCA but rather under the MHA.
HHJ Burrows further rejected submissions that he should authorise the detention under the inherent jurisdiction in the alternative, finding that, instead, the MCA and MHA provided a legal structure for her detention. He said:
“I have concluded for the reasons I have given that she could have been detained and treated under the MHA. I would go further and say that she should have been so detained and treated. Had I reached that conclusion at the hearing, I would have been invited to invoke the inherent jurisdiction to authorise Jane’s detention. I did not have to do that because of the steps I took. However, I would be reluctant to do so for the following reasons. First, because the inherent jurisdiction should be used only where a vulnerable adult or (in this case) a child is left at risk because of a gap in the statutory framework designed to keep them safe. That is not the case here. The MHA should have been used. It was available. There is no gap for the inherent jurisdiction to patch. Secondly, the MHA is a long-established bespoke code dealing with the difficult regulation of the treatment of detained patients in Hospitals. The use of the inherent jurisdiction or the MCA for that matter would have the perverse result of a Judge having to make decisions over the management of medical treatment when that code exists and is available for use. For the Court to assume that role would (a) place Judges in an impossibly difficult position and (b) act as an incentive for those entrusted with using the MHA, clinicians and Hospitals, not to use it.”
West Hertfordshire Hospitals NHS Trust v AX (Rev1)  EWCOP 11 (05 April 2023)
This case concerned the Official Solicitor’s application for a costs order against the Trust, arising out of an urgent application by the Trust for an order permitting it to perform a Caesarean Section on AX, which was subsequently withdrawn.
AX had arrived in the UK while 27 weeks pregnant, at which time she was displaying symptoms consistent with a manic episode. She was admitted to hospital after experiencing abdominal pain, and was referred to the Mental Health Liaison Team due to her “erratic behaviour”. She was detained under s2, and subsequently s3, MHA. Whilst AX was detained, a number of meetings took place to discuss AX’s birth plans. It was noted that AX’s capacity to make decisions about her labour and birth was “fluid” and changed quickly.
On 21 October 2022, the Trust made an out-of-hours application seeking a declaration of incapacity and an order permitting a Caesarean Section.
Morgan J adjourned the application to the following week when it became clear that the reason for the application being made urgently was the fact that AX had reached term rather there being any particular urgent risk (the baby’s presentation having changed from breech to cephalic), and that there had not been proper cross-examination of the psychiatric evidence because the relevant psychiatric notes were not in the court bundle. It was agreed that there be no order for costs in respect of this hearing.
The next week, the application returned to court, however by that time the Trust had carried out a further capacity assessment with the conclusion that AX had regained capacity. Accordingly, the Trust made an application to withdraw the application, subject to the Official Solicitor’s application for costs. The Official Solicitor consented to such a course.
The Trust agreed to pay 50% of the Official Solicitor’s costs, and the Official Solicitor applied for an order that the Trust pay the other 50%, or some intermediate percentage.
The Official Solicitor argued that the Out of Hours application made by the Trust was unjustified, based on incomplete evidence, and resulted in difficulties for AX’s effective participation in the proceedings. An award of costs was the only way for the court to express disapproval of the Trust’s conduct, in circumstances in which no orders were ultimately sought.
The Trust conceded that it had not followed the guidance in NHS Trust v FG  EWCOP 30. However, it argued that it made the decision based on clinical advice seeking to promote AX’s best interests. Both parties agreed that there could be no order for costs arising out of the hearing on 21 October 2022.
The judgment contains a helpful review of the applicable law with respect to adverse costs orders in welfare cases.
The Court concluded that the Trust had not followed the guidance in Re FG, and that “the way in which the application was approached signifies substandard practice”. However, the judge did not consider that this was a case where a costs order was warranted, stating at  that “although it is important to follow the guidance in FG, there is no suggestion in the case itself that breach of the guidance automatically justifies a costs order against an applicant. Something more is needed.” The judge noted that the court may express its disapproval of a party’s conduct by way of a judgment, as opposed to an order for costs.
North East London NHS Foundation Trust v (1) Beatrice (2) Edward  EWCOP 17
This case concerned a 50-year-old woman, Beatrice, who had suffered from Anorexia Nervosa since the age of 14, and had more recently been diagnosed with Autism Spectrum Disorder. Having battled “this terrible condition” for 36 years, Beatrice was of the view that “she no longer has the strength or other mental resources to carry on the struggle, and is now ready to capitulate”.
At the time the application was brought, Beatrice was rejecting all food and drink, and wished to be taken to a hospice to die. The applicant Trust’s initial application was for an order declaring that its proposed care plan for Beatrice, which included the stopping of active psychiatric treatment and referral to palliative care, was in her best interests.
The day before the hearing, Beatrice began to ingest small amounts of food and drink, totalling 260 – 300 calories (a healthy adult woman requiring 1800 calories per day). By the day of the hearing, Beatrice had reverted to wishing to be taken to a hospice. In light of this equivocation, the Trust only sought declarations that Beatrice lacked capacity (i) to decide on care and treatment options in respect of her nutrition and hydration, and (ii) to litigate the application, with the application in respect of best interests declarations to be adjourned generally with liberty to restore.
Mostyn J found that Beatrice was unable to make decisions about care and treatment options in respect of her nutrition and hydration, on the basis that she was unable to use and weigh the relevant information. Mostyn J held that “the weighing process requires her to recognise that into the scales go the stark fact that if she does not eat and hydrate normally, and very soon, she will die. I agree with Mr Sachdeva KC that for the purposes of the test there is nothing else to weigh. There are, pace Hedley J, no various, inter-relating, parts of the argument. There is nothing to put on the side of the scales objectively in favour of starvation”.
Further, Mostyn J held that Beatrice lacked litigation capacity. This was justified by a matter of logic, namely, if Beatrice is “robbed by the condition of the key element in the decision-making process of weighing the relevant information”, then “she will be equivalently disabled from formulating and making submissions to a judge as to how he or she should undertake that very weighing exercise”.
Reading Borough Council v P & Ors  EWCOP 16
This decision concerns P, an 87-year old woman with a diagnosis of Alzheimer’s Dementia. Previous proceedings in respect of P had concluded with a final declaration that it was in her best interests to continue to reside in her care home setting (as opposed to moving to live with either of her children, SS or KS).
Due to ongoing allegations about KS’s conduct when visiting P or communicating with P’s care home setting, the care home stated that they could not continue with P’s placement. As such, the local authority brought further proceedings for best interests decisions about P’s contact with KS, and about P’s placement. Further, the local authority sought a separate fact-finding hearing to determine the allegations about KS’s behaviour (which KS denied).
HHJ Owens’ judgment helpfully sets out the key principles governing fact-finding hearings in the Court of Protection.
HHJ Owens found the allegations proven on the balance of probabilities, and found herself forced to conclude that: “KS has little insight into her behaviour and its impact on P and, until she accepts that she cannot behave in this way in future, there is a risk of her continuing to expose P to conflict. The tragedy of this case is that nobody disputes that KS clearly loves P very much and that P derives great benefit from having regular contact with KS when there is no conflict. It is also not in dispute that, aside from her complaints, KS generally accepts that P is well-cared for at the current care home and that a move to a new care home may be very risky for someone as frail as P now is. I would urge KS to reflect upon my findings and whether she can change her behaviour in the future even if she thinks that P is not being cared for appropriately.”
The first judgment can be found at: https://caselaw.nationalarchives.gov.uk/ewcop/2022/27
The second judgment can be found at: https://www.bailii.org/ew/cases/EWCOP/2023/16.html