Category: Court of Protection

Residence, care, sex and marriage: an (unusual) successful appeal on capacity – Mental Capacity Law and Policy

Posted April 23rd, 2024 in Court of Protection, learning difficulties, local government, news by sally

‘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.’

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Mental Capacity Law and Policy, 22nd April 2024

Source: www.mentalcapacitylawandpolicy.org.uk

Serious medical treatment – the importance of the public record – Mental Capacity Law and Policy

Posted April 23rd, 2024 in Court of Protection, deprivation of liberty safeguards, judgments, medical treatment, news, public records by sally

‘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 majority of cases).’

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Mental Capacity Law and Policy, 22nd April 2024

Source: www.mentalcapacitylawandpolicy.org.uk

Council wins Court of Protection appeal over ruling on capacity of 20-year-old man – Local Government Lawyer

Posted April 18th, 2024 in Court of Protection, learning difficulties, local government, news by sally

‘The Court of Protection has allowed an unnamed local authority’s appeal against a court decision that a 20-year-old man, ZZ, has capacity to make decisions about residence, engage in sexual relations and marriage.’

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Local Government Lawyer, 18th April 2024

Source: www.localgovernmentlawyer.co.uk

Making final determinations in the Court of Protection – Local Government Lawyer

Posted April 8th, 2024 in appeals, case management, Court of Protection, legal representation, litigation friends, local government, news, solicitors by tracey

‘Clare Middleton analyses a Court of Protection judgment concerning an important decision taken at a procedural hearing.’

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Local Government Lawyer, 5th April 2024

Source: www.localgovernmentlawyer.co.uk

The Public Guardian and applications to revoke lasting powers of attorney – Local Government Lawyer

Posted March 26th, 2024 in costs, Court of Protection, news, Office of the Public Guardian, powers of attorney by tracey

‘The Office of the Public Guardian was recently ordered to pay costs after the dismissal of its application to the Court of Protection to revoke lasting powers of attorney. Christine Cooper explains why.’

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Local Government Lawyer, 25th March 2024

Source: www.localgovernmentlawyer.co.uk

Asset manager appointed by linked trust corporation held to be conflict of interest – Pensions Barrister

Posted March 22nd, 2024 in conflict of interest, Court of Protection, news, pensions by sally

‘In Irwin Mitchell Trust Corpn v PW [2024] EWCOP 16, a trust corporation, appointed as property and affairs deputy for a protected person under the Mental Capacity Act 2005, appointed an asset management company that was part of same corporate group as the trust corporation to manage the investment of the protected person’s funds. The Court of Protection held that that appointment operated to the financial advantage of the trust corporation, clearly breaching the rules against conflict of interest, and as such required ratification by the court. The court rejected the trust corporation’s arguments that the potential for conflict had been extinguished by the appointment process and that the appointment had already been authorised by an earlier court decision. The court adjourned the issue of ratification pending further evidence as to whether the appointment would be in the best interests of the protected person.’

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Pensions Barrister, 21st March 2024

Source: www.pensionsbarrister.com

The tendency of human nature to be swayed by interest rather than duty – Mental Capacity Law and Policy

Posted March 20th, 2024 in conflict of interest, Court of Protection, news by sally

‘In Irwin Mitchell Trust Corporation v PW & Anor [2024] EWCOP 16, Irwin Mitchell Trust Corporation (“IMTC”) had been appointed as property and affairs deputy for a woman, PW. In that capacity, IMTC appointed Irwin Mitchell Asset Management (“IMAM”) to manage the investment of PW’s funds. The issue for determination by HHJ Hilder was whether the appointment of IMAM by IMTC as PW’s deputy breached the rules against conflict of interest.’

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Mental Capacity Law and Policy, 20th March 2024

Source: www.mentalcapacitylawandpolicy.org.uk

Court of Protection declares lawfulness of care plan setting out arrangements for termination of woman’s pregnancy – Local Government Lawyer

Posted March 15th, 2024 in abortion, alcohol abuse, Court of Protection, drug abuse, local government, mental health, news, pregnancy by sally

‘A judge sitting in the Court of Protection has declared that a care plan setting out the arrangements for the termination of a woman’s pregnancy was lawful.’

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Local Government Lawyer, 14th March 2024

Source: www.localgovernmentlawyer.co.uk

Judge in Court of Protection declines request for judicial visit due to risk of “unconscious bias” – Local Government Lawyer

Posted March 12th, 2024 in autism, bias, Court of Protection, judiciary, news, practice directions by tracey

‘A judge sitting in the Court of Protection has declined to meet the applicant in advance of a capacity hearing, over concerns that a judicial visit “may influence decision making” and cause unfairness to the parties.’

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Local Government Lawyer, 12th March 2024

Source: www.localgovernmentlawyer.co.uk

TA v the Public Guardian and Duties of a Certificate Provider – Parklane Plowden Chambers

Posted March 11th, 2024 in appeals, chambers articles, Court of Protection, news, powers of attorney by sally

‘The case involved an appeal to Mrs Justice Lieven by P’s potential attorney (“the Appellant”) from a decision of HHJ McCabe sitting in the Court of Protection. The Judgement is short, and therefore probably worth reading, particularly if you want to be refreshed of all the relevant statutory provisions which I have not set out in this note.’

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Parklane Plowden Chambers, 6th February 2024

Source: www.parklaneplowden.co.uk

Public Law Newsletter: Feb 2024 – Spire Barristers

Posted March 6th, 2024 in chambers articles, Court of Protection, news by sally

‘Public Law Newsletter February 2024; covering news from around the web, practice updates and case updates within Court of Protection and Public Law matters.’

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Spire Barristers, 19th February 2024

Source: www.spirebarristers.co.uk

Court of Protection case law update: February 2024 – Local Government Lawyer

Posted February 23rd, 2024 in Court of Protection, local government, news by michael

‘Lauren Gardner and Eleanor Suthern round up the latest Court of Protection cases of interest to practitioners.’

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Local Government Lawyer, 22nd February 2024

Source: www.localgovernmentlawyer.co.uk

Triangulation and flexibility: taking capacity seriously in changing circumstances – Mental Capacity Law and Policy

Posted February 14th, 2024 in Court of Protection, disabled persons, expert witnesses, learning difficulties, local government, news, pregnancy, sexual offences by sally

‘Re DY [2024] EWCOP 4 is a case showing how demanding taking capacity seriously is – and should be. It concerned a young woman, whom the court had previously found to lack capacity in to make decisions about residence, care and contact, but to have capacity to make decisions about engaging in sexual relations, in face of strenuous arguments to the contrary from the local authority. Injunctive orders were then made against the woman’s former foster carer, suspected of sexually abusing DY; at a subsequent hearing, the court made a final order that DY had the capacity to make decisions relating to her use of contraception, having accepted a report from DY’s GP.’

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Mental Capacity Law and Policy, 11th February 2024

Source: www.mentalcapacitylawandpolicy.org.uk

Contact, contraception, conception and conceptual clarity: Poole J dissects a difficult question – Mental Capacity Law and Policy

Posted February 14th, 2024 in Court of Protection, disabled persons, families, learning difficulties, news, pregnancy by sally

‘Poole J is rapidly becoming the specialist sexual capacity judge at the Court of Protection. Following his decisions in Hull City Council v KF [2022] EWCOP 33, and Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44, we now have Re EE (Capacity: Contraception and Conception) [2024] EWCOP 5. The case concerned a 31 year old woman who wanted to become pregnant and have a baby; her capacity to engage in sexual relations, to decide about contact with others, and to make decisions about contraception, were all in issue and required the court’s determination.’

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Mental Capacity Law and Policy, 11th February 2024

Source: www.mentalcapacitylawandpolicy.org.uk

Don’t ignore the Serious Medical Treatment Guidance – but let’s be clear about what the law requires – Medical Capacity Law and Policy

Posted February 5th, 2024 in codes of practice, Court of Protection, doctors, families, hospitals, medical treatment, news by sally

‘This is a post co-written by Tor Butler-Cole KC and I, prompted by the decision in GUP v EUP and UCLH NHS Foundation Trust [2024] EWCOP 3, a case in which Hayden J was concerned with a situation of a woman in her late 80s who had sustained a serious stroke and was being cared for in hospital.’

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Mental Capacity Law and Policy, 4th February 2024

Source: www.mentalcapacitylawandpolicy.org.uk

Capacity in context – a paradigm case – Local Government Lawyer

Posted January 23rd, 2024 in Court of Protection, disabled persons, mental health, news, sexual offences by tracey

‘Alex Ruck Keene KC (Hon) analyses a recent ruling where the judge’s observations about capacity, and in particular how to approach questions of capacity under constraint, are of broader application.’

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Local Government Lawyer, 19th January 2024

Source: www.localgovernmentlawyer.co.uk

Court of Protection case update: January 2024 – Local Government Lawyer

Posted January 15th, 2024 in Court of Protection, local government, news by tracey

‘Lauren Gardner and Eleanor Suthern round up the latest Court of Protection cases of interest to practitioners.’

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Local Government Lawyer, 12th January 2024

Source: www.localgovernmentlawyer.co.uk

Public Law Newsletter: Nov 23 – Spire Barristers

Posted December 18th, 2023 in chambers articles, Court of Protection, news by sally

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

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Spire Barristers, 28th November 2023

Source: www.spirebarristers.co.uk

Public Law Newsletter: Oct 23 – Spire Barristers

Posted November 8th, 2023 in chambers articles, Court of Protection, news by sally

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

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Spire Barristers, 3rd October 2023

Source: www.spirebarristers.co.uk

Termination, will and preferences – another difficult dilemma for the Court of Protection – Mental Capacity Law and Policy

Posted October 26th, 2023 in abortion, consent, Court of Protection, news, pregnancy by sally

‘The very difficult case of Re H (An Adult; Termination) [2023] EWCOP 183[1] stands out for the careful attempt by the judge – John McKendrick KC (sitting as a Tier 3 judge) to comply with (in CRPD language) the will and preferences of a woman with a mental disorder undergoing a profound crisis. The questions he had to answer were whether the woman, H, had capacity to make the decision to consent to terminate her pregnancy,[2] and, if she lacked that capacity, whether a termination was in her best interests; and, if a termination were to be in her best interests, whether this should be carried out by a medical procedure (i.e. the administration of drugs) or a surgical procedure.’

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Mental Capacity Law and Policy, 25th October 2023

Source: www.mentalcapacitylawandpolicy.org.uk