Mental notes

In this article, I provide a whistle-stop tour of developments in mental capacity law over the past eight months, taking in everything from Sergei Skripal to Cecil Parkinson.

Scope of the Court of Protection’s powers

In N v A Clinical Commissioning Group and others [2017] UKSC 22, the Supreme Court confirmed again that ‘it is axiomatic that the decision-maker [whether a carer, donee of a power of attorney, court-appointed deputy or the court] can only make a decision which P himself could have made’. Thus in circumstances where a provider or funder refuses to provide or fund a particular package of care, the court cannot compel it to do so. So, the Court of Protection (CoP), when deciding on P’s best interests, can only decide between the ‘available options’. Public law decisions regarding the arrangement or funding of care options can be only challenged by way of judicial review.

N is a profoundly disabled young man: he has severe learning and physical disabilities, together with autism and an epileptic condition resulting in frequent seizures. N has a ‘primary health need’, which meant the local clinical commissioning group (CCG) became responsible for his care. His lack of capacity was not in dispute; the two outstanding issues were visits to his parents’ home and his mother assisting with his intimate care.

N’s parents had historically intimidated and obstructed the professionals to the extent that his father received a custodial sentence for assaulting a social worker. Notwithstanding those difficulties, the care home had proposed a contact plan, but was unwilling to facilitate N’s visits to the family home and to allow N’s mother to assist with his care for various reasons.

The Court of Protection must have the realistic treatment options in mind

At first instance, Mrs Justice Eleanor King determined that she did not have jurisdiction. Baroness Hale considered that the issue was not one of jurisdiction: the court had been properly seised of the application. It was rather an issue of how the case should be handled. She summarised the CoP’s case management powers, which include the power to exclude any issue from consideration. She concluded that the court was entitled to determine that no useful purpose would be served by continuing the hearing, because it had no power to order the CCG to fund what the parents wanted, nor could it order the care providers to do what they were unwilling or unable to do.

Lord Justice Peter Jackson in Re RW [2018] EWCA Civ 1067 also emphasised that the CoP must have the realistic treatment options in mind. This case was brought as a rare challenge to the first instance assessment of best interests, and reiterates the appellate courts’ extreme reluctance to interfere with evaluations by first instance judges.

The scope of section 21A applications

Re Briggs (Incapacitated Person) [2017] EWCA Civ 1169 concerned the withdrawal of life-sustaining treatment. Mr Briggs was involved in a road traffic accident that left him in a minimally conscious state. His wife brought an application under section 21A of the Mental Capacity Act 2005 (MCA 2005), so the court could decide whether it was in Mr Briggs’ best interests for clinically assisted nutrition and hydration (CANH) to be withdrawn. The court therefore had to consider whether the application was properly brought.

A section 21A application allows P to challenge a standard or urgent authorisation, which is granted to render P’s deprivation of liberty lawful. Given that this procedure was introduced to ensure compliance with article 5(4) of the European Convention on Human Rights, applicants are entitled to non-means-tested legal aid. Mrs Briggs acknowledged that the principal issue was serious medical treatment and she had only elected to bring such an application because of the funding.

Every decision in relation to an incapacitated person will be made through the prism of their best interests

The court determined that section 21A (and schedule A1) relates to decisions about the deprivation of liberty, not the circumstances which lead up to the deprivation of liberty. It does not provide a duplicate route by which personal welfare, and particularly medical treatment, decisions can be challenged. Every decision made in relation to an incapacitated person under the MCA 2005 will be made through the prism of their best interests – thus a consideration of a person’s best interests must be in relation to the specific decision to be made.

The particular decision under challenge by virtue of section 21A is whether it is in the best interests of P to be a detained resident. A question regarding serious medical treatment is not therefore a question in relation to a deprivation of liberty. One must consider whether the deprivation of liberty is essentially a ‘backdrop’ to a decision regarding serious medical treatment. If that is the case (and the deprivation of liberty is a secondary matter), then the application should be made under sections 15-17 of the MCA 2005. That analysis chimes with the expertise of those who decide whether a deprivation of liberty is in P’s best interests but cannot assess P’s treatment. The court helpfully advised that if there is an outstanding treatment issue, then the assessor can limit the duration of the standard authorisation to ensure the treatment issue is addressed within a certain period of time.

While the case was not about legal aid, Sir Brian Leveson PC observed that families in similar circumstances end up ‘addressing difficult issues at acutely traumatic times in their lives’. He observed that ‘consideration should be given to the public interest justification of adding financial pressures to the many others that the affected families face’, assuming that the merits of the proceedings can be demonstrated.

Finally, with regards to life-saving treatment and deprivations of liberty, the court confirmed Lady Justice Arden’s approach in Ferreira v HM Senior Coroner for Inner South London and others [2017] EWCA Civ 31 that: ‘[A]ny deprivation of liberty resulting from the administration of life-saving treatment to a person falls outside article 5.1 […] so long as [it is] rendered unavoidable as a result of circumstances beyond the control of the authorities and [is] necessary to avert a real risk of serious injury or damage, and [is] kept to the minimum required for that purpose.’

The rationale is that the real cause of P not being free to leave is their underlying illness, for which the state is not responsible. Any application regarding treatment needs to be made under section 16 of the MCA 2005. However, if, as a consequence of ensuring that P receives the treatment in their best interests, P will be become subject to a deprivation of liberty, then there must be an authorisation of that deprivation (see Lady Justice King’s judgment, at paragraph 108).

Sergei and Yulia Skripal and the ‘responsible citizen’

The background facts to this case (Secretary of State for the Home Department v Skripal [2018] EWCOP 6) need no introduction. The CoP was thrust into the centre of this major international incident when it was asked to consider whether it was in Sergei Skripal and his daughter’s best interests for the Organisation for the Prohibition of Chemical Weapons (OPCW) to collect blood samples and to analyse their medical records. The matter came before Mr Justice Williams, who also considered consular notification and habitual residence.

The reasonable citizen believes that justice should be done

Mr Justice Williams

What is particularly interesting is Mr Justice Williams’ analysis of their best interests in circumstances where there was no evidence of the Skripals’ past or present wishes and feelings regarding the issues at hand. He considered the reference in the statutory Code of Practice to ‘the effect of the decision on other people … the duties of a responsible citizen’ as a factor that a person lacking capacity might consider if they were able to. In his analysis, he considered ‘how a reasonable citizen would approach matters’. He determined that the reasonable citizen, including the Skripals, believes that justice should be done and that the conduct of the investigations proposed by the OPCW would further that general aim. He weighed up the pros and cons and concluded that the balance ultimately fell in favour of taking the samples and disclosing the notes.

Retrospective approval of gifts

In Re HH [2018] EWCOP 13, Her Honour Judge Vincent considered the retrospective approval of gifts of money paid from HH’s accounts to his son (the applicant) over a period of six years, in the total of £99,576.89 (reduced to £88,366.77). The applicant had an enduring power of attorney for property and affairs for HH, which allowed him ‘to do on behalf of the donor anything which the donor could lawfully do by an attorney at the time when the donor executed the instrument’ (paragraph 3(1) of schedule 4 to the MCA 2005). That power is limited in circumstances where the attorney provides a benefit to a person other than the donor, which includes making payments to family members for care. If there is a conflict of interest for the attorney, then they should apply for the approval of such payments. The value of the gifts given by the attorney must not be unreasonable, having regard to all the circumstances, and in particular, the size of the donor’s estate (see also the guidance on family care payments by the Office of the Public Guardian). The judge observed that: ‘[I]n signing the declarations he did when he became his father’s attorney, he took on a much stricter duty. He had a responsibility to ensure that his father had sufficient funds to meet all his needs then and into the future, that he was not paying himself in excess of what the guidelines would suggest is reasonable for an attorney and/or carer to be paid, that he was keeping a careful account of all expenditure, and that he was mindful of his parents’ wishes that gifts to one brother should be equalised by a gift to the other.’

She retrospectively approved gifts totalling £72,820.29. She determined that the unapproved sum should be accounted for from the applicant’s share of the residuary estate of HH (and if insufficient, it should be treated as a debt owed by the applicant to HH’s estate), rather than wasting money on costly litigation.

Reforming the deprivation of liberty safeguards

The Law Commission has estimated that the full cost of compliance with the Deprivation of Liberty Safeguards (DoLS) regime following the decision in Cheshire West would be £2.2bn per year – approximately two per cent of the entire budget of NHS England. There is no doubt that the current regime is complex and bureaucratic. On 13 March 2017, the Law Commission published its recommendations and a draft bill. Those recommendations include:

• DoLS be repealed and replaced with a scheme called liberty protection safeguards
• greater safeguards for persons before they are deprived of their liberty
• enhanced rights to advocacy and periodic checks on the care or treatment arrangements
• greater prominence to issues of the person’s human rights, and whether a deprivation of liberty is necessary and proportionate
• a simplified version of the best interests assessments, emphasising that arrangements must be necessary and proportionate, and allowing previous assessments to be taken into account.

The government responded on 14 March 2018, and agrees in principle that the current DoLS system should be replaced as a matter of urgency, but that it will need to consider how the proposals would fit into the health and social care sector. The Joint Committee on Human Rights published its report on 29 June and urged the government to reform the ‘broken’ DoLS scheme. The Mental Capacity (Amendment) Bill has now been published.

Court of Protection Rules 2017

On 1 December 2017, the Court of Protection Rules 2017 were recast into the same format as the Civil Procedure Rules (CPR) and Family Procedure Rules. These rules and the accompanying practice directions cement those in the case management, transparency and section 49 report pilots (see PD3B and part 15 on expert evidence, PD4C, and PD14E respectively). The case management pilot introduced three distinct pathways for CoP proceedings: (i) a property and affairs pathway, (ii) a health and welfare pathway, and (iii) a hybrid pathway for cases that have elements of both. The transparency pilot essentially provided for all hearings to be held in public subject to reporting restrictions. The section 49 report pilot was intended to address the problems with securing reports from NHS bodies and local authorities under section 49 of the MCA 2005.

It is important to note, however, that the 2017 rules are predominantly consolidating provisions. There have only been minimal changes to the legislation, most notably the additions in part 21 that contain comprehensive freestanding provisions for proceedings in relation to contempt of court.

Choosing a litigation friend

In Keays v Executors of the Late Parkinson [2018] EWHC 1006 (Ch), the High Court considered whether Sara Keays, the mother of Flora Keays (the adult child of the late Cecil Parkinson, the Conservative politician) was an appropriate litigation friend for Flora in proceedings brought under the Inheritance Act 1975. A maintenance order against Cecil Parkinson had been awarded in the sum of £20,000 per annum for Flora, which continued after her reaching majority because of her serious physical and mental disability. The executors alleged that Sara, Flora’s mother, should be removed as litigation friend, because of a conflict of interest.

Cecil died on 22 January 2016 and had made no provision for Flora (or her mother) in his will. Proceedings were started to seek financial provision for Flora from his estate. Master Clark relied on, and affirmed, the authority of Davila v Davila [2016] EWHC B14 (Ch) in respect of what constituted an ‘interest adverse to that of the […] protected party’ under rule 21.4(3)(b) of the CPR. In considering what constitutes an ‘adverse’ interest, the following points are relevant.

• A person appointed as a litigation friend might have their own independent interest or reasons for wishing the litigation to be pursued – that, in general, is not a sufficient reason for impeaching the appointment.
• A litigation friend must ‘seek the best outcome’ for the protected party, and must ‘be able to exercise some independent judgment on the advice she receives from those acting for a claimant’.
• Even if the interests of a protected party and litigation friend generally coincide or run in parallel, there may be certain circumstances in which those interests diverge and become adverse. Whether that is indeed the case depends upon the facts of the particular case.

On the facts, Master Clark rejected the allegation of Sara Keays’ conflict of interest and inability to act as a litigation friend. But, in any event, she had agreed to the appointment of an independent solicitor to act as Flora’s litigation friend.

Withdrawal of CANH without the need to go to court

On 30 July, the Supreme Court handed down its much-awaited judgment in Re Y [2018] UKSC 46. The question before the court was whether a court order must always be obtained before CANH, which is keeping a person with a prolonged disorder of consciousness (encompassing both a permanent vegetative state and a minimally conscious stage) alive, can be withdrawn. Lady Black, giving the leading judgment, concluded that ‘if the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court’. Thus, the court considered the matter, not only in relation to CANH, but any form of life-sustaining treatment.

On the horizon

The Supreme Court has now granted permission to appeal the decision in Re D [2017] EWCA Civ 1695 regarding how to approach deprivations of liberty for those under 18 and how much the MCA 2005 interacts with the common law concept of parental responsibility. The case will also have implications for the delivery of medical treatment to older teenagers.