The document discusses a Supreme Court decision regarding applications to the Court of Protection following an increase in potential applications due to the Cheshire West ruling. It summarizes discussions from a hearing where the President of the Court of Protection explored establishing a streamlined application process. It also summarizes two specific court cases, one involving a woman with learning disabilities who refused medical treatment during pregnancy, and another providing guidance on out of hours applications to the Court of Protection.

2. •following Supreme Court decision in Cheshire West, Court now beginning to deal with practical impact of potential increase in applications to Court of Protection

3. •Sir James Munby, President of the Court of Protection hearing 5-6 June 2014
•hearing to explore possibility of ‘streamlined process’ for applications

4. •initial authorisation must be by a Judge, not a Court Officer
•initial application can be on the papers and does not necessarily require an oral hearing

5. •‘triggers’ for an oral hearing where
–P objects
–essential issues are in dispute
–any other reason the Court thinks appropriate
•ongoing review annually by a Judge

6. Separate applications for each individual (and therefore separate Court fee)
Anticipated revised Court forms and practice directions

7. Draft order
Proof of age and eligibility
Unsoundness of mind (medical opinion still required)
Confirmation imputable to state
Nature of arrangement and why it is a deprivation of liberty
Evidence on best interests – including any less restrictive option

8. Indication of P’s wishes, values and beliefs/involvement of others
Any advanced directive, lasting power of attorney or deputy
Eligibility for public funding
Identify of potential litigation friend
Any reason for urgency

9. •P does not need to be a party to proceedings
•must be given opportunity to be joined as a party if wish and given proper support
•if P is a party then litigation friend is required
•litigation friend can (with the permission of Court) act without solicitors

10. •Court clearly looking to streamline process
•likely to be some time before forms/practice direction revised
•in the meantime practitioners urged to comply with the spirit of the Judgment pending this
•a second judgment anticipated
•appeal?

11. The Acute Health Trust, The Acute Health Trust and the Council and DD and BC [2014] EWCOP11

12. DD 36 year old lady with autistic spectrum disorder and mild borderline learning disability
Complex obstetric history – expecting her sixth baby
Significant previous complications with other births
DD and her partner, BC, refused to engage with public bodies and despite considerable efforts by the latter to try to support her
2 previous orders had authorised removing DD from her home temporarily to accept medical assessment of her pregnancy

13. DD totally disengaged from services – wanted a natural home delivery
All public bodies opposed this – significant risk to her and baby given her obstetric history
Judge found that DD lacked capacity to make decisions on her medical treatment and particularly lacked capacity to make decisions on the mode of treatment (caesarean section)

14. Court reminded of Supreme Court decision in Aintree University Hospital NHS Foundation Trust v James that the power of the Court is only to “do for the patient what he could do for himself if of full capacity but goes no further” and “whether it is in the patient’s best interests to give the treatment”

15. •evidence clear that DD would not co- operate and therefore force may be required to access her home and transport her to hospital

16. •Judge satisfied that despite interference with DD’s liberty, it was in her best interests and least restrictive option to authorise authorities to go into her home and remove her, by force if necessary, to hospital in order to undergo planned caesarean section

17. •Court agreed that inappropriate to advise DD or BC of the planned date of the caesarean for the risk that they may abscond. They were however told of the plan, but not the timings.

18. •initial hearing Judge found it would be in DD’s best interests to offer contraceptive education
•second hearing (9 days later) Court made order that

19. 1.reason to believe DD lacked capacity to make decisions in relation to contraception (despite having been given contraception in the past and professionals not questioning her capacity to receive this)
2.that she should be provided with education on contraception
3.that she should receive a contraceptive injection at the time of caesarean section

20. DD continued to refuse to engage and therefore Court authorised use of reasonable force to convey DD to education training in a community health setting
Plan for her to be assessed on her capacity to make contraception decisions – not compelled to co-operate but can be conveyed by force if necessary in order for assessment to be undertaken
Judge found plan for assessment post caesarean in DD’s best interests, and pending that assessment interim judgment that she lacked capacity to make decisions on contraception
Best interests for her to have depot injection as contraception for 3 months to provide “cover” pending the assessment

21. Case illustrates how far Court is prepared to go – may be seen to be “extreme” case
Careful judgment and clear that authorities had undertaken very considerable effort to attempt to engage with DD
Use of force may be contentious especially to convey to education on contraception
Fine distinction between saying that nobody can be forced to undergo a capacity assessment and being forcibly conveyed to a place where such an assessment will take place

22. recent decision Sandwell & West Birmingham Hospitals NHS Trust and CD and EF and AB and NHS Sandwell and West Birmingham CCG [2014] EWCOP23

23. •Court guidance re making out of hours applications
•warning from Court not to delay making applications and to involve Official Solicitor as early as possible

24. We hope you found it useful.
Please get in touch if you have any questions or wish to discuss the topics we covered further…
neil.ward@brownejacobson.com | +44 (0)121 237 3927