Welcome to latest Court of Protection newsletter
As will be seen from this quarter’s newsletter, the courts continue to see applications in connection with the administration of the Covid-19 vaccination and with numbers of those testing positive increasing over the last week, we expect that further applications will follow. Our advice remains to ensure the applications are made timeously so as to avoid (continuing) criticism from the court as to delay. Alongside that and unusually, we have seen a spate of cases come before the Court of Protection and High Court – in quick succession – on the question of brain stem death. The Court of Appeal has ruled that a High Court Judge should reconsider the case of Archie Battersbee and decide whether it is in his best interests for life-support treatment to end. The case was listed before Hayden J on 11 July 2022 and an outcome is awaited. Continuation of ventilation and treatment in cases where brain stem death has been confirmed is extremely challenging for healthcare professionals and raises serious moral and ethical questions when one considers that healthcare professionals are being asked to respond actively to a natural deterioration of “bodily functions” as occurs after brain stem death. Hopefully, the Court will be able to give some definitive guidance on how to manage expectations (families and healthcare professionals) where a dispute arises in the future. If you have any thoughts or views, please do let us know.
And finally, it would be remiss of us not to mention and applaud our very own Ben Troke for being given a Faculty Commendation alongside Alex Ruck Keen QC (Hon) to mark the work he has done and continues to do for the Faculty of Intensive Care Medicine’s Legal and Ethical Policy Unit – well done both!
Round-up of key cases
Here is our round-up of the key Court of Protection cases from this quarter which we believe our readers will be most interested in. Please follow the link within the case summary to access the full judgment. Contact our team to discuss any particular case in more detail.
Claire Christopholus, Senior Associate
COVID-19 vaccination in a patient with severe epilepsy and mild learning difficulties
X is a 50-year-old woman with severe epilepsy and mild learning difficulties. The CCG applied for a declaration it was in her best interests to be vaccinated against the COVID-19 virus (the virus). Read more
Refusal of expert evidence in an application for a declaration it is in P’s best interests to receive the COVID-19 vaccination
E is a man in his mid-60’s with a moderate to severe learning disability. The CCG applied for a declaration it was in E’s best interests to be vaccinated against the COVID-19 virus (the virus). Read more
A capacitous decision to refuse nutrition and the Court’s refusal to invoke the inherent jurisdiction
PH is a 41-year-old man with a complex medical history, including hypoxic brain injury and a tracheostomy. He requires percutaneous endoscopic gastronomy (PEG) feeding. Read more
A rare decision by the Court of Protection to obtain further evidence before determining an appeal (in relation to COVID-19 vaccination)
This case involved DC, a 21 year old man with a profound learning disability, rare congenital brain malformation and respiratory issues. Read more
Capacity to execute a Lasting Power of Attorney (LPA)
Although this case relates to capacity to execute an LPA for Property and Financial Affairs, the same principles are likely to apply to an LPA for Health and Welfare and, as the Court noted, there is a lack of judicial authority addressing this issue. Read more
News and views – what you need to know
Brave new world – how will Court of Protection responsibilities be affected by Integrated Care Systems?
By the time you read this, Clinical Commissioning Groups will have gone the way of PCTs, SHAs and RHAs, and Integrated Care Systems/Boards (ICS/ICBs) will be the new game in town. How will this affect responsibilities for Court of Protection issues, and what practical problems might there be?
Our team explores this more in their article here.
Brain stem death
We have recently been advising NHS Trust clients in connection with disagreements between clinicians and family members over:
(a) whether or not to conduct brain stem death testing, and
(b) the withdrawal of ventilation and treatment after testing has confirmed brain stem death.
There have been two cases before the Family Division of the High Court in recent months which are worth drawing to your attention. Emma Pollard, Senior Associate and editor of this newsletter, explains more here.
Reporting restriction orders – Court of Appeal gives permission to appeal
Many of our readers may be familiar with the decision of the President of the High Court’s Family Division, Sir Andrew McFarlane (the President), handed down 23 June 2021 refusing the applications made by parents in the case for the discharge of the reporting restriction order (RRO) in their respective cases. The President directed that the RROs in each case be amended to reflect the changed position following the death of the children (Zainab Abbasi and Isaiah Haastrup) and be reissued on the basis that they will remain in force “until further order”.
The Court of Appeal (CoA) gave permission to parents to appeal the President’s decision on 24 May 2022 on grounds that the application raised issues of public importance and that there was a compelling reason for the appeal to be heard.
Kiran Bhogal, Partner, reviews the decision here.
Balancing risks in the Court of Protection – Manchester University NHS Foundation Trust -v- William Verden & anr [2022] EWCOP 9
Amy Clarke, Senior Associate, reviews the case of Manchester University NHS Foundation Trust -v- William Verden, centred around whether the combination of risks from a kidney transplant would be in his best interests as a treatment route.
Read more here.
Industry news in brief
LPS Update
Thanks to those who joined the lively discussion at our latest LPS webinar and gave such positive feedback. By way of reminder the deadline for consultation responses is Thursday 14 July and the survey can be accessed here. Our own response will highlight our grave concern about the way in which a deprivation of liberty (DoL) has been defined in Chapter 12 of the Code, and the lack of guidance about the interface between lifesaving medical treatment which either (a) constitutes a DoL and can be authorised by S4B, or (b) is not a DoL at all due to the exception for life saving treatment, as per the case of Ferreira.
Our next LPS webinar is scheduled for 19 October 2022 and you will be able to book a place on our website in due course. In the meantime, please do reach out to Ben Troke, Joanna Crichton, Amy Clarke or myself if you have any questions, especially in relation to the Consultation Response.
Emma Pollard, Senior Associat
Draft MCA Code of Practice – first thoughts on the MCA updates
Understandably, there has been a great deal of focus on the Liberty Protection Safeguards (LPS) part of the new draft Code of Practice, following its publication on 17 March 2022.
Amy Clarke, Senior Associate, and our team highlight in this article some of their initial thoughts on the proposed changes and updates to the existing MCA part of the code. Read more here.
For further information, please contact:
Kiran Bhogal, Head of Health Advisory, Hill Dickinson
kiran.bhogal@hilldickinson.com
