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Public Law Newsletter: Oct 23




Public Law Newsletter October 2023; covering news from around the web, practice updates and case updates within Court of Protection and Public Law matters.


Edited by Holly Littlewood and Aaqib Javed. Written by new tenants, Lauren Gardner and Eleanor Suthern.



Nottingham University Hospitals NHS Trust v JM & Anor [2023] EWCOP 38 (18 August 2023)

Factual Background:

The case concerned a 26-year-old autistic man named JM, who lacked capacity to make decisions about his medical treatment. JM was diagnosed with chronic kidney disease in January 2021 and required regular haemodialysis sessions for his condition. However, JM and his mother did not accept this diagnosis or the necessity of dialysis. Despite extensive efforts by medical professionals, including psychologists, to persuade JM of the need for treatment, he consistently refused and frequently missed outpatient appointments while living with his mother. Legal proceedings were initiated by Nottingham University Hospitals NHS Trust in October 2022 to address JM’s treatment.

In August 2023, following successful treatment for infections related to his dialysis line, JM was discharged from the hospital after receiving dialysis. However, five days after discharge, an ambulance was called to JM’s home, where he was discovered in bed, covered in blood. Examination revealed that one of the central venous catheter lines used for dialysis had been intentionally cut, resulting in bleeding.

JM was admitted to hospital, and the damaged line was determined to be beyond repair and needed urgent removal to mitigate the risk of further bleeding. While JM consented to the line’s removal, he refused the insertion of a new one. It was made clear to JM that without further dialysis, he would be unlikely to survive. Health professionals, including psychologists and speech and language therapists, employed communication aids to explain the situation to JM. JM expressed that he believed he would not die and refused to consent to a replacement line.

JM’s situation had progressively deteriorated, with his erratic compliance and distorted thinking effectively ruling out his eligibility for a donor organ or extended haemodialysis, which required strict adherence. While JM’s belief system regarding dialysis was profoundly distorted, the court recognized that it was essential to respect his autonomy, even if his reasoning was unsound. It was noted that JM’s complex psychological functioning and traumatic life experiences contributed to his distorted beliefs.

A best interests meeting was convened later that day, attended by medical experts, social workers, and JM’s Independent Mental Capacity Advocate. The prognosis was that, without a new dialysis line, JM’s health would rapidly deteriorate, leading to his death within one to ten days post his last dialysis. The meeting explored five treatment options:

  1. Chemical restraint to enable dialysis line reinsertion, allowing JM to return home.
  2. Chemical restraint, with detention in hospital if necessary, to reinstate dialysis, but still requiring transport for dialysis.
  3. No immediate dialysis, with palliative care, dialysis offered if he worsened and consented.
  4. No immediate dialysis, with continued encouragement, and dialysis offered if consented; no treatment if JM became unconscious.
  5. No immediate dialysis, opting for palliative care without further discussions about dialysis.

The matter was brought before Hayden J on 15 August, and professionals and JM’s mother provided their views on JM’s complex situation. Dr. F, who was initially open to restraint, told the Court that in their view it would be a short-term solution causing JM significant distress, and restraint would compromise his relationship with hospital staff and risk retraumatizing him.

The Law:

The central legal issue revolved around whether it was in JM’s best interests to undergo dialysis despite his objections. The Mental Capacity Act 2005 provides the legal framework for making decisions on behalf of individuals who lack capacity. When determining what is in a person’s best interests, the Act requires consideration of all relevant circumstances, including the person’s past and present wishes and feelings, their beliefs and values, and other factors they would likely consider if they had capacity.

The general position regarding medical decision-making is crucial to ensure patient autonomy, informed consent, and the delicate balance between preserving life and respecting individual rights. The case of Burke v General Medical Council (2005) highlights the fundamental steps involved in this process.

Firstly, the doctor, based on their clinical judgment, determines the clinically indicated treatment options that would provide overall clinical benefit to the patient. Subsequently, these treatment options are presented to the patient, accompanied by comprehensive explanations of the associated risks, benefits, and side effects. The patient, in turn, exercises their right to autonomy and makes a decision regarding which treatment option, if any, they wish to pursue. Importantly, patients may make these choices based on rational, non-clinical factors or even without providing any reasons at all. If the patient selects one of the offered treatment options, the doctor proceeds to administer it. However, if the patient declines all proposed options and requests an alternative treatment not initially offered, the doctor may discuss it with them. Still, the doctor is not legally obliged to provide the unoffered treatment if it is deemed clinically inappropriate. Nevertheless, they should offer to arrange a second opinion, ensuring that the patient’s best interests are prioritized.

When a patient lacks the capacity to consent to medical treatment, as described in A Local Authority v JB (2021), the Court of Protection steps in to determine their best interests. This process involves assessing whether the proposed treatment aligns with the patient’s best interests rather than focusing on whether withholding treatment is appropriate.

Under the Mental Capacity Act 2005, when a person is incapable of making decisions for themselves, it becomes an obligation to act in their best interests. This includes considerations of their past and present wishes, beliefs, values, and input from caregivers. Importantly, decisions regarding life-sustaining treatment must not be motivated by a desire to bring about the person’s death, as stipulated in the Act. Additionally, the Act provides legal protections for carers, allowing them to perform acts in the person’s best interests without incurring liability, provided they reasonably believe the person lacks capacity and act in the best interests of the individual. Furthermore, the Act empowers the Court of Protection to make decisions about personal welfare, including consent to or refusal of treatment. These decisions must always prioritize the person’s best interests, as defined by the Act.

It is important to note that, as stated by Baroness Hale in Aintree v James (2013), there is a strong presumption in favour of preserving life. However, this presumption is not absolute. Each case is unique and must be evaluated individually, considering the patient’s specific circumstances.

The preservation of human dignity, as emphasized in North West London Clinical Commissioning Group v GU (Rev1) (2021), is a central theme. This concept entails respecting personal autonomy and conducting a thorough examination of the patient’s life, values, and wishes to make informed decisions.


In the judgment, the Court considered JM’s unique circumstances and the legal principles that guide such decisions.

The Judge concluded that compelling JM to undergo dialysis against his will, particularly in the face of his strong objections, would result in repeated and extensive restraint, causing considerable distress and potentially traumatizing him. Such an approach would also compromise JM’s dignity and his relationship with medical staff. The Judge concluded that forcing JM to undergo dialysis against his expressed opposition or at a time when he could no longer resist would compromise his dignity.

The Judge had had a private conversation with JM, during which JM expressed a desire to live. The Judge respected JM’s wishes and left the final decision in his hands.

The judgment acknowledged the efforts of medical professionals and JM’s family, especially his mother and sister, in dealing with a challenging and complex situation.


Barnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] EWCOP 35 (15 August 2023)

Factual Background:

This matter involved a 60-year-old man, Mr. K. He had been residing in a mental health unit for five years, though he was not formally detained there. Mr. K suffered from persistent delusions, paranoia, a long-standing heart condition and chronic bilateral venous leg ulcers. Previous court orders authorised his transfer to a care home with provisions for physical and chemical restraint, but these measures were not ultimately required.

The Court had to address the urgent medical needs of Mr. K, specifically the treatment of his severely infected leg ulcers, which posed a risk of amputation if left untreated. Mr. K resisted professional assessment and treatment. On the other hand, due to his cardiac problems, using chemical and physical restraint to convey him to the hospital posed significant risks. Even if he was admitted to the hospital, any procedure requiring general anaesthesia was problematic due to his cardiac health.

The Law:

Capacity: The court firstly referred to Section 48 of the Mental Capacity Act 2005 (MCA), which allows the court to make orders or give directions in matters related to a person (P) if certain conditions are met. These conditions include having reason to believe that P lacks capacity in the matter, the matter falls under the court’s powers under the MCA, and it is in P’s best interests to make the order or give the directions without delay. The court cited the principles from A Local Authority v JB [2021], emphasizing the need to identify the correct matter for capacity evaluation, assess relevant information under Section 3(1) of the MCA, and determine whether P’s inability to make decisions is due to a mind or brain impairment. Regarding the burden of proof in capacity assessments, the court clarified that Section 48 does not require proof of incapacity on the balance of probabilities but rather a lower threshold based on reason to believe that P lacks capacity.

Best Interests: The court then turned to the determination of best interests as outlined in Sections 1 and 4 of the MCA, guided by Lady Hale in Aintree University Hospitals NHS Foundation Trust v James [2013]. The court emphasized that its role is to decide whether a particular treatment is in the best interests of a patient who cannot make the decision themselves. The focus should be on whether providing the treatment is in the patient’s best interests rather than whether withholding or withdrawing it is in their best interests. If a treatment is not in the patient’s best interests, it is lawful to withhold or withdraw it, and it would not be lawful to give it.

The court also highlighted the comprehensive nature of the best interests assessment, which considers medical, social, and psychological aspects. The Court must evaluate the nature and prospects of success of the treatment, the likely outcome for the patient, and try to understand the patient’s attitude toward the treatment. The court must consider the patient’s wishes and feelings, beliefs, values, and other factors specified in Section 4 of the MCA.

Additionally, the court stressed the importance of respecting the patient’s rights under the Human Rights Act 1998, particularly Articles 2, 3, 5, and 8, when making any decision, ensuring that the best interests test accommodates an assessment of the patient’s rights.


The court first determined that Mr. K lacked the capacity to make decisions regarding the treatment of his leg ulcers. The evidence provided reason to believe that he could not make informed decisions about his medical care in this context.

Next, the court considered Mr. K’s best interests. Several options were available:

  1. Awaiting further evidence – this was not viable due to the urgency of Mr. K’s medical condition.
  2. Permitting urgent investigation and treatment at the care home
  3. Conveying him to the hospital – this was considered risky at this stage, given his cardiac problems. However, the court recognized that inpatient investigations might be necessary to assess the damage to his venous and arterial systems and the potential for wound healing. Therefore, the decision to convey him to the hospital was finely balanced and dependent on the expert evidence that would emerge from further assessments.
  4. Persuading him to attend the hospital – the fourth option involved persuading Mr. K to attend a different hospital managed by a different trust, as he had previously spoken highly of it. This option required further exploration, but if it proved unworkable, the court would endorse option three, which involved assessment and treatment at the care home, potentially using chemical and physical restraint as a last resort.

The Court therefore made a best interest order pursuant to sections 48 of the 2005 Act that the assessment and treatment care plan is in Mr K’s best interests and authorise the use of chemical and physical restraint, if necessary as a last resort. A further hearing would be necessary to consider the next steps based on the evolving circumstances.


RK, Re (Capacity; Contact; Inherent Jurisdiction) [2023] EWCOP 37 (18 August 2023)

Factual Background:

The case revolved around a 30-year-old woman RK who had Down’s Syndrome, a moderate to severe learning disability, partial sight, and an IQ of 60. She resided in supported living called ‘Castle Hill,’ where her care was provided by a company referred to as ‘Signia’ under the jurisdiction of the local authority, XCC. RK was an accomplished swimmer and actor.

Over time, RKs relationship with her family became strained, particularly due to her romantic involvement with another resident at Castle Hill named SA. This relationship caused significant distress to her family, leading to disputes with Signia. Eventually, RK stopped communicating with her family and distanced herself from them, even refusing visits and family events.

Previously, Cobb J had determined that R lacked capacity to litigate and manage her property and affairs, but she had capacity in certain areas, including engaging in sexual relations and deciding to stay at Castle Hill. In the current proceedings, R’s family sought a declaration that she lacked capacity to make decisions about contact, that she was susceptible to undue influence, and measures should be put in place to protect her. They also sought to revoke the Lasting Power of Attorney (LPA) created for RK. Alternatively, they wanted the court to establish a supportive framework to help RL rebuild her relationship with her family.

The court considered RL’s capacity to make decisions about contact with her family and whether she was unduly influenced. It also examined whether orders under the inherent jurisdiction were necessary.

The Law:

The key principles of the MCA 2005 were applied to determine whether the individual in question, RK, had the capacity to make decisions regarding contact with others.

  1. The MCA 2005 starts with the presumption that individuals like RK have the capacity to make decisions unless proven otherwise (Section 1(2) MCA 2005).
  2. The law requires taking all practicable steps to support the individual in making decisions before concluding they lack capacity (Section 1(3) MCA 2005).
  3. Making an unwise decision does not necessarily indicate a lack of capacity (Section 1(4) MCA 2005).
  4. Capacity is determined by assessing whether the individual is unable to understand, retain, use or weigh information relevant to the decision or communicate their decision (Section 2 MCA 2005).
  5. Capacity is assessed based on the specific decision at hand (North Bristol NHS Trust v R [2023] EWCOP 5).
  6. The MCA 2005 provides a clear and straightforward structure for evaluating capacity, with the focus on the decision to be made (PC v NC and City of York Council [2013] EWCA Civ 478).
  7. The information relevant to a decision depends on the nature of that decision, including its foreseeable consequences (Section 3(1)(a) MCA 2005).
  8. The assessment should focus on the salient or most important factors, avoiding overloading the test with peripheral details (LBL v RYJ [2010] EWHC 2664 (Fam), CC v KK & STCC [2012] EWCOP 2136).
  9. When assessing capacity for contact decisions, it’s important to consider the nature of relationships, different contact options, positive and negative aspects of contact, and the impact of the decision on the individual (LBX v K, L, M [2013] EWHC 3230 (Fam)).
  10. The guidance regarding information to consider when making a decision should be adapted to the specific case (B v A Local Authority [2019] EWCA Civ 913).

In looking at the inherent jurisdiction, the Court considered that the inherent jurisdiction concerning vulnerable adults has been discussed in two important cases, namely Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942 (Fam) and DL v A Local Authority & others [2012] EWCA Civ 253.

In Re SA, it was noted that the inherent jurisdiction can be invoked for vulnerable adults who are, or reasonably believed to be, under constraint, subject to coercion or undue influence, or otherwise incapable of making a particular decision freely. Constraint refers to any significant limitation on an adult’s freedom, while coercion and undue influence involve improper pressure from others. Re SA also emphasized that the jurisdiction is not confined to those with mental incapacity. Even a vulnerable adult without mental incapacity may be protected if they are constrained, coerced, or influenced to the point of being unable to make a genuine decision.

DL confirmed the continuing relevance of Re SA after the enactment of the Mental Capacity Act 2005 (MCA 2005). It clarified that the inherent jurisdiction should target adults whose autonomy to make decisions is compromised by factors not covered by the MCA 2005. This approach aims to protect vulnerable adults whose capacity is borderline or whose autonomy is diminished by undue influence or other external factors.

The court’s intervention under the inherent jurisdiction must be necessary and proportionate, respecting an individual’s right to private and family life. It is designed to protect individuals from undue influence and ensure unencumbered decision-making.

In this case, the burden of proof falls on the applicant and third respondent to demonstrate that the vulnerable adult’s will is being overborne by caregivers and that she is subject to constraint, coercion, undue influence, or other vitiating factors. This is a serious allegation, and it must be proven on the balance of probabilities.

In summary, the inherent jurisdiction can be invoked to protect vulnerable adults who are unable to make decisions freely due to various factors, even if they do not have a mental incapacity. However, this jurisdiction is not all-encompassing, and its application is subject to clear limits.



Cobb J found that R had the capacity to make decisions about contact with her family. He believed that R understood the relevant issues, could use and weigh the information, and had the ability to communicate her views. R was conflicted, as she loved her family but was hurt by them and believed they were trying to control her.

The judge rejected the claims of undue influence by Signia staff or environmental alienation. He found that R had made free choices to engage with her family on several occasions, such as participating in the Talking Project and agreeing to meetings. Her vacillation was not necessarily an indicator of undue pressure.

Regarding the inherent jurisdiction, Cobb J emphasized that the burden of proof fell on the applicant, and it was a serious allegation to make. He found no evidence of undue influence or constraints by Signia staff. The court’s role was not to dictate how people should think or interact with each other.

Ultimately, Cobb J concluded that the proceedings should end, as they were causing R significant distress. He believed that once the litigation ceased, and if R’s wishes were respected, she might be open to reconciling with her family. He recognized the need for time and possibly counseling to facilitate this process. The judge also proposed writing a letter to R explaining the end of the proceedings and offering her an opportunity to meet again if she wished.


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