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|CB v Medway Council (2019) EWCOP 5||Unfair summary disposal of DOL/residence case||"The simple issue is whether the Judge had sufficient information before her to discount, at this stage, any real possibility of CB returning to her home, supported by the extensive and expensive care package that is being mooted. The language of the Judgment itself, to my mind, answers this question in phrases such as “I very much doubt…. I am very sceptical…. The practicalities are…. likely to be extremely difficult….” I share the Judge’s scepticism and I also very much doubt that even with an extensive package of support a return home will be in CB’s best interest. I note too that Dr Ajiteru expressed himself in cautious terms (see para 10 above). However, scepticism and “doubt” is not sufficient to discount a proper enquiry in to such a fundamental issue of individual liberty. ... It is easy to see why the Judge took the course she did and I have a good deal of sympathy with her. She will have recognised, as do I, that the effluxion of time has had its own impact on the viability of the options in this case. However, what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases."|
|Hounslow Clinical Commissioning Group v RW (2019) EWCOP 12||Death||"This is an application brought by the Hounslow Clinical Commissioning Group concerning RW a 78-year-old man, suffering from vascular dementia. ... I would very much have liked to have been able to endorse a plan which permitted RW to return home. There is no doubt at all, as the history of this case shows, that RW would want to die at home. I do not know whether he would survive the transition but I should have been prepared to take that risk. However, PT would, in my judgement, continue to try to give his father food and water. As I speak these words he indicates to me that this is precisely what he would do. I have been told by Ms I that, at this stage, if PT were to attempt to feed his father there is a real risk that he would asphyxiate on any food given. I cannot permit RW to be exposed to the risk of ending his life in this way and, if I may say so, I would not be prepared to take that risk for PT either, especially having regard to all the loving care he has provided for his father. I endorse the applicant's plan. I indicate that it is in RW's best interest to have his sons with him as much as possible. I am not prepared to be prescriptive of the times and the circumstances in which the sons may visit. In this I reject the applicant's proposals in this respect."|
|London Borough of Tower Hamlets v NB (2019) EWCOP 17||Capacity to consent to sex with husband||"There is also evidence that indicates that NB very much enjoys the status of marriage, is affectionate to her husband [AU] and, on occasion, initiates sexual relations. This appears consistent with Ms Wilson's observations as long ago as 1996. The primary issue before the Court is whether NB truly has the capacity to consent to sexual relations. ... Unfortunately, the case attracted a great deal of media coverage, this notwithstanding that no argument had been heard and no Judgment delivered. A great deal of the comment was sententious and, in some instances, irresponsible. It is considered, by the Official Solicitor and the applicant Local Authority, that the impact of that publicity frightened AU very considerably, leading him to believe that he was likely to be sent to prison. He has left the party's flat and disengaged with these proceedings. ... [Mr Bagchi for the OS] submits it is a 'general' or 'issue-specific' test rather than a partner-specific one. If Mr Bagchi is correct, the difficulty that presents in this case is that there is only one individual with whom it is really contemplated that NB is likely to have a sexual relationship i.e. her husband of 27 years. It seems entirely artificial therefore to be assessing her capacity in general terms when the reality is entirely specific. ... As I said on the last occasion, these issues are integral to the couple's basic human rights. There is a crucial social, ethical and moral principle in focus. It is important that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or border line capacity. ... Mr Bagchi has accepted that if a person-specific test were applied here then the outcome, in terms of assessment of NB's capacity may be different. ... I do not necessarily consider that the applicable test in the Court of Protection necessarily excludes the 'person specific approach'. I am reserving my Judgment ..."|
|Manchester City Council Legal Services v LC (2018) EWCOP 30||Sexual exploitation, restrictions where adults have capacity||After a circuit judge endorsed a care plan which led to the repeated sexual exploitation by strangers of a young woman with autism and significant learning disabilities (who had capacity to consent to sexual relations but lacked capacity to make decisions on her contact with men), Hayden J provided guidance that 'where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection'.|
|NHS Cumbria CCG v Rushton (2018) EWCOP 41||Withdrawal of CANH; advance decision||"This is an application regarding the proposed withdrawal of clinically assisted nutrition and hydration in respect of Mrs Jillian Rushton, who is now 85 years of age. Since sustaining a traumatic head injury in December 2015, Mrs Rushton has suffered from a prolonged period of disorder of consciousness. Insofar as a label is relevant, the consensus of medical opinion, in respect of which there is no dissent at all, is that she is in a persistent vegetative state (PVS). In their recent guidance, ‘Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent’, the Royal College of Physicians and the British Medical Association have noted that the importance of obtaining a precise and definitive diagnosis has reduced. It is recognised by the Courts and clinicians that drawing a firm distinction between vegetative state and minimally conscious state is frequently both artificial and unnecessary. In practice, when assessing best interests, information about the patient’s current condition and prognosis for functional recovery and the level of confidence with which these can be evaluated is invariably of greater importance than a precise diagnosis. ... It perhaps requires to be said, though in my view it should be regarded as axiomatic, that the medical profession must give these advanced decisions the utmost care, attention and scrutiny. I am confident the profession does but I regret to say that I do not think sufficient care and scrutiny took place here. The lesson is an obvious one and needs no amplification. Where advanced decisions have been drawn up and placed with GP records there is an onerous burden on the GP to ensure, wherever possible, that they are made available to clinicians in hospital. By this I mean a copy of the decision should be made available and placed within the hospital records with the objective that the document should follow the patient. It need hardly be said that it will rarely, if ever, be sufficient to summarise an advance decision in a telephone conversation. ... The family have ... made it clear to me that she would not have regarded her present situation as tolerable. Whilst I have no doubt that she would understand the commitment of her son, Tim and his profound resistance to letting her go, I have equally no doubt that she would want to be let go and I have no hesitation in concluding that it is my responsibility to respect this."|
|Re D (A Child): Liverpool City Council v AM (2018) EWCOP 31||Placement for child||"However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance."|