In response to a question posed by the excellent Zena Bolwig on LinkedIn, an interesting discussion has broken out about whether you need to have capacity to consent to having your capacity assessed, which in turn, raises the question of whether it’s a consent issue at all. This was the subject of a very interesting recent article from Shaun O’Keeffe and Mary Donnelly (behind a paywall, but the abstract gives you a sense of what they are arguing; Mary has also now very helpfully offered to provide it on request). Relatively briefly (I’m allegedly on holiday), I think that the question of conse ..read more

In VI v Moldova [2024] ECHR 251, the European Court of Human Rights considered the placement of a 15 year old orphan with a perceived mild intellectual disability in a psychiatric hospital against his will. He was under the care of the State at the time. At the end of what was supposed to be a three-week placement, he was left there for another four months, with nobody coming to visit or fetch him and being treated with neuroleptics and anti-psychotics. The applicant alleged that his placement and treatment, together with the conditions in the hospital and the conduct of the medical staff and ..read more

In Lukes v Kent & Medway NHS & Social Care Partnership Trust & Anor [2024] EWHC 753 (KB) Julian Knowles J had to consider whether Mr Lukes had a viable claim for damages for personal injury against either the police or a mental health Trust. Mr Lukes had jumped from height in August 2020 onto railway tracks and sustained serious injuries. In the year or so before this incident, and especially in the days leading up to it, there had been concerns about his mental health, and he had been detained twice the year before under the Mental Health Act 1983. He had also been arrested by pol ..read more

A few days early (next week is particularly busy for me), the May 2024 quarterly update to the Court of Protection Handbook is now available on the Handbook website, including such matters as judicial visits, when to bring serious medical treatment cases to the Court of Protection, when the court can revoke deputyship and fee increases before the court ..read more

In CL v Swansea Bay University Health Board & Ors [2024] EWCOP 22 Theis J has confirmed that that the Court of Protection has an unfettered discretion to remove a deputy.  On appeal, she rejected the contention that the court’s powers are limited by s.16(8) MCA 2005, which talks of the court having the ability to revoke the appointment of a deputy or vary their powers “in particular” if the deputy “(a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contrav ..read more

In 2014, a (relatively) very long time ago, Sir James Munby, then President of the Court of Protection, issued guidance on the publication of judgments.  This set a presumption, absent “compelling reasons,” for publication of judgments relating to a range of matters, either where the judgment already exists, or the judge has ordered that the judgment be transcribed.  The guidance applied to all judgments in the Court of Protection delivered by the Senior Judge, nominated Circuit Judges and High Court Judges (in other words, not to judgments delivered by District Judges, who hear the ..read more

As Lieven J noted in her opening paragraph, A Council v An NHS Foundation Trust & Ors [2024] EWHC 874 (Fam) was, even by the standards of the Family Division, a particularly tragic and awful case. It has recently appeared on Bailii, but was decided at the start of 2024.  It concerned Z, one of two young twins who had both been born with health issues.  He had remained in hospital since birth, when (in terms described cryptically in the judgment), something clearly went wrong such that his tracheostomy tube was dislodged, and he was in major and prolonged cardiac arrest for 15 min ..read more

Re ZZ (Capacity) [2024] EWCOP 21 is an example of a relatively species of case, namely a successful appeal in relation to capacity.  At first instance, HHJ Burrows had found that ZZ had capacity make decisions about residence, sexual relations and marriage. The local authority appealed his conclusions, the appeal being opposed by ZZ through his litigation friend the Official Solicitor. As Theis J described him, ZZ is a 20 year old man with a diagnosis of mild learning disability (‘LD’), attention deficit hyperactivity disorder (‘ADHD’) and possible obsessive compulsive disorder (‘OCD ..read more

Y NHS Foundation Trust v AN & Anor [2024] EWHC 805 (Fam) concerned a 16 year old girl, AN, who had very recently been diagnosed with acute leukaemia.  After one night in hospital, she had discharged against medical advice but with the support of her parents. At the time, the doctor concerned was satisfied that she had the capacity to take that decision.  Shortly afterwards, the consultant haemotologist visited AN at home to explain to her the urgency in starting treatment, and that why it would usually be done as an inpatient. AN explained that she was not refusing treatment ..read more

With effect from 1 May 2024, the fee for making an application in the Court of Protection will rise from £371 to £408, and the appeal fee from £234 to £257. The Court and Tribunal Fees (Miscellaneous Amendments) Order 2024 also corrects some errors, including in the Court of Protection Fees Order 2007.  As the Explanatory Memorandum notes: Paragraph 14(3)(b) in Schedule 2 to the Court of Protection Fees Order 2007 deals with the calculation of a party’s disposable capital and gross monthly income for the purposes of calculating entitlement to fee remissions. Mistakenly, paragraph 14(3)(b ..read more