Public Law Newsletter: Sept 23
TW v Middlesborough Council  EWCOP 30
This case concerned ‘Tony’ and whether he has capacity to make decisions about his residence, care, use of internet and social media whereby it was found that he was accessing images of child sexual abuse.
By way of background, Tony was born with cerebral palsy, is deaf and is a wheelchair since 2017 when he fractured his spine. For several years professionals concerned with Tony’s best interests have continued to support him on the basis that he has a mild learning disability .
The question before the court was whether he should be moved to Placement 2, a care home exclusively for adult males who are at risk of encountering the criminal justice system. However, only those diagnosed with a learning disability could be admitted.
The court heard expert evidence from a consultant clinical psychologist who confirmed that Tony functions as if he has a learning disability.
The judge considered North Bristol NHS Trust v R  EWCOP 5 and specifically, paragraph 47, which explains why a formal diagnosis of a mental health condition or brain injury is not a prerequisite to a finding that a person lacks capacity to make a decision about a matter, within the framework of the Mental Capacity Act 2005.
The judge went on to consider the legal position in respect of determining whether Tony had capacity to make decisions about his residence, care, use of internet and social media, as well as weighing up expert evidence.
It was agreed that Tony lacked capacity to make decisions in relation to residence, care, use of the internet and social media. The judge made declarations and interim orders accordingly.
To summarise, the judge stated at paragraph 30, “I am satisfied that on a balance of probabilities, Tony lacks capacity to decide: whether to live at Placement 1 or Placement 2, who should care for him and the type of care and support he receives, and what use to make of the internet and social media. In relation to each decision, the inability exists by reason of an impairment in the functioning of his mind or brain. The impairment, which operates as a functional learning disability, is the result of stunted mental development, occurring before the age of 18 years, as a result of prolonged deprivation of communication, education, social learning and life experience, in combination with institutionalisation. That impairment renders Tony unable to understand why accessing images of child sexual abuse is wrong, the potential consequences for him if the police are involved, and the harm caused to children directly and to wider society indirectly by his actions when he is allowed unrestricted, unsupervised internet access.”
The judge authorised a transition to Placement 2, pending final determination of his best interests in relation to residence, care, support, and use of the internet and social media. Interim orders were made to permit support workers to supervise Tony’s access to the internet and social media and prevent him from accessing images of child sexual abuse, or any other material they consider may be illegal or which may make those viewing or possessing the images liable to criminal prosecution.
Wiltshire County Council v RB & Ors  EWCOP 26
This case concerned an appeal against an earlier decision that RB lacks capacity to consent to her discharge from hospital and decide on her personal care.
This case concerned RB, a 29-year old woman, who has a diagnosis of autistic spectrum disorder (ASD) and has a history of admissions under the Mental Health Act 1983, both of which led her to being hospitalised on a psychiatric ward for 2 years.
RB was discharged in January 2023 to a bungalow with 24/7 package of 2:1 care. She was deeply unhappy there and as a result, attempted to strangle herself . RB contacted the court herself seeking assistance. She, and her carers, also contacted emergency services and was admitted to a general hospital . RB was clear that she did not wish to return to the bungalow.
The grounds of appeal were outlined, as was the established caselaw.
The judge allowed the appeal and remitted the matter for a rehearing. The judge was clear that the three best interests decisions should be distinguished as follows:
- Discharge from hospital
- Living arrangements and
- Personal care
Warrington Borough Council v Y & Ors  EWCOP 27
This matter concerns a judgment about whether Y has capacity to decide on her residence and care.
Y is in her early twenties, who was born male, but now identifies as a female. She was diagnosed with autistic spectrum disorder (ASD) as a child.
In 2018, she sustained life changing injuries . The damages of such an accident are yet to be assessed.
The question before the court was whether Y had capacity to decide on her care and residence.
The judge reviewed opposing psychiatric opinions. It was agreed between both psychiatrists that the issues of care and residence, in this case, are closely linked..
The established legal position was outlined. A Local Authority v H  EWCOP 4 was referred to at paragraphs - within this judgment.
The judge at paragraph 46 stated the following, “I do not consider the case is “delicately balanced” in the way that phrase is frequently used. The decision is essentially binary. It requires me to determine which of two carefully analysed opinions I consider likely to be accurate. I have come to the clear view that Dr Todd’s opinion is to be preferred and for the reasons I have already stated.” As such, the judge determined that Y did lack capacity. The judge was clear to acknowledge that “that some of Dr Grace’s reservations may also reflect my own sense from the evidence that Y’s situation remains an evolving one”.
North Middlesex University Hospital NHS Trust & Anor v MB  EWCOP 23
This judgment relates to an application to authorise the Trust to deliver MB’s child by caesarean section if necessary and whether she should be informed of the local authority’s application for an interim care order.
MB, is a 26-year-old woman, at the time of the judgment being delivered, was 37-weeks pregnant. She was detained under section 3 of the Mental Health Act 1983, having been admitted in March 2023.
The proceedings concern an application in relation to serious medical treatment, namely the birth plan which is to be put in place to ensure the safety and wellbeing of both mother and baby during the delivery process . It was agreed in this case that MB lacked capacity to make informed and considered choices about how her unborn child would be brought into this world .
The application was brought by the Trust, to consider: (i) whether MB lacks capacity to make decisions regarding her obstetric care, and, if so, (ii) what care plan is in her best interests .
The expert who was considering whether MB had capacity, concluded that her capacity was fluctuating and there was a risk that she may lose capacity during labour .
The legal position was established at -. As capacity was not a contentious issue, the legal framework in respect of capacity and best interests’ decision making were briefly outlined.
In respect of the factual matrix and the questions before the court, the judge referred to Guys and St Thomas’s NHS Foundation Trust and another v R  EWCOP 4,  4WLR 96 and Cheshire West and Chester Council v PWK  EWCOP 57.
At paragraph 44, the judge concluded by stating the following: “the postponement of informing MB about the local authority’s current position this close to her likely delivery date represents a potential interference with her Art 8 rights but it is an interference which is necessary, justified and proportionate. She should not be informed of those matters prior to the birth of her child.”
Aberdeenshire Council v SF & Ors  EWCOP 28
This matter related to an application to determine the habitual residence of SF, who was subject to a Scottish Guardianship Order.
By way of background, SF is a 44-year-old woman from Scotland who had been treated in a psychiatric hospital for the last 7 and a half years in England. She has a lifelong diagnosis of moderate intellectual disability, autism spectrum disorder, associated periods of severe anxiety, and a diagnosis of difficult to treat schizoaffective disorder (bipolar type). It is not in dispute that she lacks capacity to conduct this litigation and to make decisions about residence and care .
The question before the court is to determine the place of SF’s habitual residence . The court needed to determine the application by Aberdeenshire Council for recognition and enforcement of the 2021 SGO.
The legal position was outlined at paragraphs -, as well as at paragraphs -, whereby the judge considered the legal position in respect of habitual residence.
The judge concluded by stating that he is bound to accept that SF is habitually resident in Scotland, otherwise the order could not be made. However, this was distinguished from her remaining so. The judge placed weight on SF’s connection with her family in Scotland  and her living arrangements in England. The judge outlined that without family in England, and the temporary measure of SF’s accommodation in England, both contributed to a sense of instability for her .
“Weighing all facts and matters” the judge “concluded that it is established that SF remains habitually resident in Scotland”.
Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings), Re  EWCOP 29
This appeal concerned transparency in committal proceedings in the Court of Protection.
The appellant was a defendant in the Court of Protection committal proceedings relating to his relative, AB. The contempt related to a breach of an order restricting contact with AB, a penal notice was attached. The appellant admitted the breaches and the court made findings of contempt of court. However, no sanctions were imposed .
Neither the finding of contempt, nor the decision of sanction were appealed. However, the appeal was in relation to the transparency of the judgment.
The appellant brought the appeal against the following decisions’ made by the judge:
“i) To publish a judgment naming Dr Esper as a contemnor; and
ii) To permit the publication of Dr Esper’s name, while restricting the identification of AB, and two other relatives of AB who are respondents in the Court of Protection proceedings.”
The grounds of appeal focused on the transparency of committal proceedings and are outlined at paragraph .
The judge outlined the issue of transparency at paragraph -. Specifically, Practice Direction: Committal of Court – Open Court  1 WLR 2195 and Court of Protection Rules 2007, r21.8(5) were referred to at paragraph -.
The decisions made in Sunderland City Council v Macpherson  EWCOP 3 wand EBK v DLO  EWHC 1074 (fam) were referred to and considered by the judge.
The judge concluded, at paragraph , the following: “It was not for the Judge to exercise a discretion to permit or prevent Dr Esper’s identity being disclosed”. The judge stated that he was right not to be bound by EBK and to preserve the anonymity of other parties.
He gave permission for the matter to be heard, given the important point it raised in relation to the interplay between Court of Protection Rules 2007 and PD 2015, however, dismissed the appeal .