facts:

A is a 25-year-old woman with mild learning difficulties, Asperger’s syndrome/autism spectrum disorder, and epilepsy. She has been under Court of Protection proceedings for five years, and is currently residing in a care home. Her mother, B, seeks a declaration that it is in A’s best interests to return home to her care, which is opposed by the Local Authority, the NHS Trust responsible for A’s care, and the Official Solicitor acting for A.
It had previously been determined that A lacks capacity to conduct litigation and make decisions about residence, care, contact with others and medical treatment and this was not in dispute.

The background to this case was lengthy but can be summarised as follows. In April 2019, HHJ Moir determined that relocating A from her mother’s home to a specialist care facility was in her best interests. Subsequently, in June 2020, HHJ Moir ruled to suspend all contact between A and her mother, B. Then, in September 2020, HHJ Moir decided that covert hormone treatment was necessary for A’s well-being, a decision made in closed proceedings unbeknownst to B and her representatives. Two years later, in September 2022, Poole J ordered that B be informed of the covert medication and the closed proceedings, advocating for the reintroduction of contact between A and B. Throughout this period, contact between A and B progressed from telephone to video to face-to-face interactions. With the consent of all parties, including B, covert medication has continued, and A remains at her current placement, receiving specialist medical care, including covertly administered hormone replacement treatment (HRT).

Despite attempts to educate A about the benefits of hormone treatment, she refuses to cooperate. B, now collaborating with the covert medication, seeks A’s return home, believing she could persuade A to accept treatment. However, the Local Authority opposes this, suggesting supported independent living as an alternative. They also argue that the re-introduction of contact between A and B has negatively affected A’s behaviour and mood.

The court faced the challenge of determining the best course of action for A’s residence and medical treatment, considering the complex interplay of A’s condition, familial influence, and her best interests. At the heart of this decision lay the question of whether it was still in A’s best interests to persist in residing in the care placement where she receives covert medication, and remain separated from her mother, B. Alternatively, the decision also considered the option of returning A to her mother’s care, bearing in mind the ramifications this would have for her ongoing medical treatment.

law:

The Mental Capacity Act 2005 (MCA 2005) outlines key principles regarding decision-making for individuals lacking capacity. Section 1(5) and (6) emphasize that actions taken on behalf of such individuals must be in their best interests and should be the least restrictive option. Section 4 of the MCA 2005 further elaborates on determining best interests, highlighting the importance of considering the individual’s past and present wishes, beliefs, and values, as well as involving relevant parties in the decision-making process.

Baroness Hale’s observations in Aintree University Hospitals NHS Trust v James [2014] AC 591 underscore the broad scope of assessing best interests, extending beyond medical concerns to encompass social and psychological well-being. This perspective necessitates understanding P’s viewpoint and consulting with those involved in their care.

The Court of Protection’s approach to best interests decisions, as outlined in N v ACCG [2017] UKSC 22, emphasizes the importance of considering the individual’s wishes and feelings from their perspective. In cases like ITW v Z [2009] EWCOP 2525 and Wye Valley NHS Trust v B [2015] EWCOP 60, the courts have stressed the significance of the individual’s wishes and feelings, beliefs, and values, while weighing them against other relevant factors in determining best interests.

The assessment of best interests involves considering various factors, including medical considerations, human rights, autonomy, and relationships. However, simply tallying advantages and disadvantages may oversimplify the decision-making process, as highlighted by McFarlane LJ in In the Matter of Re F (A Child) [2015] EWCA Civ 882.
Covert medication, a serious interference with an individual’s rights, requires careful consideration within the framework of the MCA 2005 and relevant case law. Cases such as A Local Authority v P [2018] EWCOP 10 and An NHS Trust v XB [2020] EWCOP 71 underscore the need for thorough assessment, documentation, and, in many cases, judicial oversight when considering covert medication in best interests decisions.

Facts:

This case concerns NR, a 35-year-old woman who is 22 weeks pregnant and is currently detained pursuant to Section 3 of the Mental Health Act 1983 at a psychiatric hospital in Yorkshire. The applicant is the Trust and the case came before the Court of Protection because NR has been expressing ambivalence about carrying her baby to term.

NR has a significant history of substance abuse and is currently experiencing her fifth pregnancy. She has two teenage daughters, identified as H and L, both of whom were removed from her care. Records from children’s social services indicate that NR faced mental health challenges during her pregnancy with H. During this time, she sought medical attention multiple times due to self-harm incidents. Following the birth of her second daughter, NR was diagnosed with post-natal depression. During this period, NR was living with BG, the father of her children, who subjected her to ongoing domestic violence. NR has experienced a miscarriage in the past and underwent a termination of pregnancy when she was 15 years old, prior to the birth of her daughters.

law:

NR is currently detained pursuant to Section 3 of the Mental Health Act 1983, which provides for her detention in hospital for the purposes of being given medical treatment. Section 64A of the Act however makes it clear that the treatment provided under that Act must be for the mental disorder from which the patient is suffering. Termination of NR’s pregnancy is clearly not treatment for her mental illness. Accordingly, the appropriate statutory regime under which this application must be considered is the Mental Capacity Act 2005 (MCA).

The Abortion Act of 1967 sets out circumstances under which a pregnancy may be terminated. These circumstances include situations where continuing the pregnancy poses a greater risk to the physical or mental health of the pregnant woman, risks to her life, or where there is a substantial likelihood of the child being born with severe physical or mental abnormalities. The Act mandates that termination must be performed by a registered medical practitioner and with the agreement of two medical professionals. Additionally, it allows for consideration of the pregnant woman’s environment in assessing the risks involved.

The Act underscores the importance of consent, either from the pregnant woman or from the Court of Protection, particularly when the woman lacks capacity. However, consent alone is not sufficient; termination must also meet the criteria outlined in the Act. The Court of Protection may provide consent on behalf of non-capacitous pregnant women if it is in the woman’s best interests. However, the final determination of whether the conditions of the Act are met lies with medical practitioners. If the conditions are satisfied, the Court may authorize termination, focusing on the woman’s well-being and the statutory criteria outlined in the Act

Facts:

This case concerned an appeal by the Local Authority against a decision made by HHJ Burrows that ZZ has capacity to make decisions about his residence, engage in sexual relations and marriage. The appeal was opposed by ZZ, through his litigation friend the Official Solicitor.

ZZ, a 20-year-old man with a diagnosis of a mild learning disability, ADHD and possible OCD. He suffered sexual abuse as a child and was convicted of a sexual assault on a 5-year-old family member, resulting in an Intensive Referral Order for 12 months and a Sexual Harm Prevention Order (‘SHPO’), which expires in October 2024. A condition of the SHPO is that ZZ does not live or sleep in any premises where there is also a child under the age of 18 years unless approved by the local authority and does not have unsupervised contact with a child.

ZZ became a looked after child (section 20 Children Act 1989) in November 2019 and moved to a self-contained flat in October 2021. In 2022 the local authority applied to authorise ZZ’s deprivation of liberty. In 2022 a report was undertaken by Dr Rippon to consider ZZ’s capacity. Initially it was concluded that ZZ lacked capacity to conducting proceedings, care and support, internet and social media use and contact with others, but had capacity to engage in sexual relations, to marry, to use contraception and to enter into/terminate a tenancy. In a further report, Dr Rippon amended her conclusions to find that ZZ lacks capacity to engage in sexual activity and to marry.

There was a contested hearing, whereby the court heard directly from Dr Rippon. The Judge concluded that ZZ had capacity to make decisions about residence; engage in sexual relations; contraception, and to marry. And it was agreed ZZ lacked capacity to conduct proceedings; make decisions about care and support and internet and social media use. The Judge determined he lacked capacity to make decisions about contact with others.

law:

The legal framework is outlined in detail from paragraph 18 to 33. To summarise, the court referred to Re JB, Hull CC v KF and PN when considering the information relevant to making a decision to engage in sexual relations. In turning to capacity to marry, the cases of London Borough of Southwark v KA & Ors and NB v. MI were considered.

Grounds of Appeal:

The grounds of appeal were as follows: that the Judge was wrong to find that ZZ has capacity to make decisions (i) about residence; (ii) to engage in sexual relations; (iii) to marry. Submissions were made by respective parties in relation to each issue.

Facts:

The case concerns a capacity and best interests decision concerning GF and whether he should have his ulcerated leg amputated.

By way of background, GF is 60 and has a long-standing history of paranoid schizophrenia. The issues before the court were two-fold: (1) Whether GF lacks capacity to (i) conduct these proceedings and (ii) make decisions as to his medical treatment, in particular in relation to an above knee amputation and associated pre and post operative treatment. (2) If so, whether it is in GF’s best interests to undergo the amputation and receive the treatment set out in the treatment plan as placed before the court.

The matter was ultimately agreed but a judgment was published for two reasons: firstly, the case has been heard in public subject to a transparency/reporting restrictions order and the court considered that a short judgment should be published so the public know what happens, fi they so wish. And secondly, GF should have a record which he can access at his will which sets out why he has had his leg amputated and the steps that were taken to make sure that that amputation was in his best interests.

law:

The court considered the legal position in detail paragraph 33-40. The Judge considered Aintree v James and Airedale Trust v Bland.