Category

Best interests

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The new database structure introduced in 2019 is more useful than this Category page: see Special:Drilldown/Cases.

The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Marriage, prenuptial agreement, information about extent of assets, etc PBM v TGT [2019] EWCOP 6"... I identified the issues that would need to be considered at the final hearing. These were: (a) PBM's capacity to: (i) marry; (ii) make a will; (iii) enter into a prenuptial agreement; (iv) manage his property and affairs (or part thereof); (v) make decisions as to the arrangements for his care; and (vi) make decisions in relation to contact with others. (b) If PBM lacks capacity to manage his property and affairs: (i) whether (if he has capacity to enter into an antenuptial agreement and/or make a will) he should be provided with information about the extent of his assets; (ii) whether it is in his best interest for the court to direct any changes or further safeguards in relation to the current arrangement for their management; (iii) what steps should be taken to assist PBM in developing skills which may assist him in gaining capacity in that regard. (c) If PBM lacks capacity as to his care arrangements, whether it is in his best interest for further directions to be given by the court in relation thereto." 2019‑05‑10 21:29:22 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases


* Residence and care Harrow CCG v IPJ [2018] EWCOP 44"The Court is asked to determine where AJ should live and how he should be cared for. The applicant CCG has proposed an extensive package of care at the family home, with (most of) the financial arrangements managed by a third party broker. JA's parents, who are the Second and Third Respondents, do not agree the proposals and seek the dismissal of the application. 2019‑05‑10 21:18:53 2019 cases, Best interests, Cases, Judgment available on Bailii


* Death Hounslow Clinical Commissioning Group v RW [2019] EWCOP 12"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." 2019‑04‑19 22:50:27 2019 cases, Best interests, Cases, Judgment available on Bailii


* Residence, contact, tenancy London Borough of Hackney v SJF [2019] EWCOP 8"SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has capacity to make decisions about where she lives, how she is cared for, the contact she has with others (notably her son) and whether to terminate and enter into tenancy agreements; and (b) If she lacks capacity in the relevant domains, where she should live, whether her contact with her son should be restricted and whether tenancy agreements should be terminated/entered into." 2019‑03‑18 22:38:32 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases


* Residence, wishes and feelings LB Islington v AA [2018] EWCOP 24"These proceedings began with three applications, all dated 27th July 2017. One application was made on form DLA in respect of an Urgent Authorisation of deprivation of liberty at C Lodge granted on 24th July 2017. The other applications were made on forms COP1 and COP9, and sought orders for the return of AA to C Lodge." 2018‑10‑22 15:39:21 2018 cases, 39 Essex Chambers summary, Best interests, Cases, E90, Judgment available on Bailii


* Best interests/transparency PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067"Two central criticisms are made of the judgment below, and the judge's determination of best interests. First, that the judge failed to appreciate and therefore give any or any adequate weight to RW's wishes and feeling. These were, contrary to her findings, ascertainable; they pointed to the fact that he was a "fighter", to the value he ascribed to life and to his desire to "hold fast to it" no matter how "poor" or "vestigial" in nature it was. Secondly, the judge overstated the risk that having the NG tube in place would pose for RW at home and the burden this would place on him, in circumstances where the dedicated care his sons could provide would remove or mitigate that risk. In the result, and in any event, it is submitted the judge's overall analysis of what was in RW's best interests failed adequately to address the relevant issues and evidence, and was a flawed one. In my view neither criticism is well-founded." Another aspect of this case related to the transparency order/reporting restrictions. 2018‑05‑22 20:40:44 2018 cases, Best interests, Cases, Judgment available on Bailii, Reporting restriction order cases


Law Society mental health accreditation scheme - CPD requirements

During late 2017 and early 2018 the Law Society retrospectively operated an unpublished policy of disallowing certain CPD topics (including mental capacity law) for the mental health accreditation scheme. On 28/2/18 an email was sent from Mental Health Law Online, setting out the background and stating that the following steps ought to be taken urgently: (1) the previous, normal definition of "mental health law" should be re-adopted; (2) in any event, the current policy should be published on the Law Society's website and circulated by email among all current panel members; (3) if that policy narrowly defines "mental health law" then it should apply only from the date of publication and not retrospectively; (4) the cases of those who have been adversely affected should be revisited. On 4/4/18, judicial review proceedings were issued against the Law Society by a former panel member, Rebecca Hill of GT Stewart Solicitors and Advocates, against refusal of reaccreditation. On 6/4/18 the Law Society stated that "practitioners may submit training in related Mental Capacity topics for up to two hours of the six per year, providing that this is structured training (for example: courses and webinars, where there is a defined syllabus which we may peruse on request)". Updated guidance was published in December 2018: see Law Society, 'Mental Health Accreditation: Application and re-accreditation application forms guidance notes and policies' (dated 5/12/18).

2018‑04‑06 00:57:36 CPD


Law Society mental health accreditation scheme - CPD requirements

During late 2017 and early 2018 the Law Society retrospectively operated an unpublished policy of disallowing certain CPD topics (including mental capacity law) for the mental health accreditation scheme. On 28/2/18 an email was sent from Mental Health Law Online, setting out the background and stating that the following steps ought to be taken urgently: (1) the previous, normal definition of "mental health law" should be re-adopted; (2) in any event, the current policy should be published on the Law Society's website and circulated by email among all current panel members; (3) if that policy narrowly defines "mental health law" then it should apply only from the date of publication and not retrospectively; (4) the cases of those who have been adversely affected should be revisited. On 4/4/18, judicial review proceedings were issued against the Law Society by a former panel member, Rebecca Hill of GT Stewart Solicitors and Advocates, against refusal of reaccreditation. On 6/4/18 the Law Society stated that "practitioners may submit training in related Mental Capacity topics for up to two hours of the six per year, providing that this is structured training (for example: courses and webinars, where there is a defined syllabus which we may peruse on request)". Updated guidance was published in December 2018: see Law Society, 'Mental Health Accreditation: Application and re-accreditation application forms guidance notes and policies' (dated 5/12/18).

2018‑04‑06 00:57:36 CPD


N v ACCG [2017] UKSC 22, [2017] MHLO 11 — "So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the 'available options'." 2017‑04‑27 22:59:08 2017 cases, Best interests, Brief summary, ICLR summary, Judgment available on Bailii, Transcript


Devon County Council v Manuel Martins and Teresa Kirk [2016] EWCOP 45, [2016] MHLO 60A consent order signed on 9/2/17, which followed an application notice dated 23/1/17 and the death of Manual Martins on 1/2/17, led to the publication of this judgment of 10/6/16, together with the lifting of all reporting restrictions. Extract from judgment: "These proceedings in the Court of Protection concern an 81 year old man called Manuel Martins, now suffering from dementia. He is currently in Portugal, having been taken there by his sister, Teresa Kirk. Previous orders have been made by other judges of this court ordering his immediate return. To date, Mrs Kirk has failed to comply with those orders and it may be therefore that she is in contempt of court as a result. That is not however a matter for this hearing. Because of the passage of time, I considered it appropriate at an earlier hearing to direct a further assessment of where Mr Martins' best interests lay. The fact is that he has now been living in Portugal for some time and I considered that it would be right in the circumstances to direct a further assessment. That assessment having now been carried out, I have today conducted a hearing to determine whether it is in Mr Martins' best interests to return to this country, to reside at a unit hereafter referred to as "A House" in the town where he lived for many years before going to Portugal, or rather to remain in his current residential unit in Portugal. ... I conclude that the balance plainly comes down in favour of a return to this country and a placement at A House." 2017‑02‑14 22:42:29 2016 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re A (A Child) [2016] EWCA Civ 759, [2016] MHLO 22 — "This is an appeal against the making of a declaration by Mrs Justice Parker on 20 June 2016 whereby she declared that: 'It is lawful and in A's best interest to remove his respiratory support by extubating him and, if he becomes unstable, not to reintroduce his respiratory support again but instead generally to furnish such treatment by way of pain relief or sedation and nursing as may be appropriate to ensure that A suffers the least distress and pain at the time and in the manner of his dying.'" 2016‑07‑13 22:02:15 2016 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re P (Huntingdon's disease patient at Royal Liverpool and Broadgreen University Hospitals NHS Trust) [2016] MHLO 13This case involved a man in his 30s in the advanced stages of Huntington’s disease who had repeatedly pulled out a feeding tube attached to his stomach. The Trust applied for a ruling on what treatment would be in his best interests. Having heard evidence from a consultant neurologist (who said that it would not be right, and would be futile, to re-insert the feeding tube), and other evidence, including from relatives, Hayden J concluded that the tube should not be reinserted, even though this would hasten the man’s death. (Summary based on Press Association article.) 2016‑05‑01 20:16:08 2016 cases, Best interests, Brief summary, Transcript


A Local Health Board v Y (A Child) [2016] EWHC 206 (Fam), [2016] MHLO 8 — "In all the circumstances, therefore, I conclude that the course proposed by the clinicians is in Y's best interests. In accordance with the parties' ultimate agreement, I therefore conclude that (1) It is lawful and will be in Y's best interests for him to be extubated at the point where the clinicians, following discussion with Y's family, consider that his condition is optimal for extubation, and that "optimal" for these purposes is likely to mean when (a) he remains on minimal ventilation: (b) he has a body temperature of less than 37.5 and (c) that he has not required CPR for the previous 12 hours; (2) Upon extubation, it is lawful and in his best interests not to re-intubate him if he is unable to support his own respiration. (3) Upon extubation, it is lawful and in his best interests not to receive CPR (save for stimulation, which may be provided) or ventilation or inotropes." 2016‑02‑17 22:02:45 2016 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Somerset v MK [2014] EWCOP B25, [2014] MHLO 146 — "What I intend to do in it is to set out the history of the case and then of the litigation. Then I will deal with the factual issues upon which I have been asked by the local authority to make findings. I will then deal with the central issue in the case, that of where in her best interests should (P), the subject of this application, live. Next I will consider the conduct of the local authority and make findings on the issues as to whether P had been wrongly deprived of her liberty and, if she had, how long did that go on for; and finally what, if any, lessons can be learned from this case. ... These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it." 2015‑12‑22 22:22:55 2014 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript


Re AG [2015] EWCOP 78, [2015] MHLO 123 — "This is an appeal from an order of His Honour Judge Rogers, sitting as a nominated judge of the Court of Protection. Judge Rogers was considering the appropriate welfare arrangements for AG, a young woman born in October 1985. ... DG's grounds of appeal dated 22 September 2013 identify four grounds of appeal. It is said that Judge Rogers: (a) erred in not conducting an adequate assessment of AG's capacity; (b) failed to make findings of fact in relation to the events in 2011 that had triggered the proceedings; (c) made a decision as to where AG should live which by September 2013 was a fait accompli; and (d) acted in breach of Article 8 in directing that DG's contact with AG should be, as it is put, 'heavily' supervised. It is apparent from her counsel's very helpful skeleton arguments ... that the major thrust of DG's case relates to ground (b). ... For these reasons each of DG's grounds of appeal fails. ... Ms Khalique submits, and I am inclined to agree, that the local authority acted unlawfully in removing AG from OG in November 2011 and placing her at HH without having first obtained judicial sanction. Local authorities must seek and obtain appropriate judicial authority before moving an incapacitous adult from their home into other accommodation. Local authorities do not themselves have power to do this. Local authorities also need to appreciate and take appropriate steps to minimise the understandable distress and anger caused to someone in DG's position when initial relief is obtained from the court on the basis of allegations which are not thereafter pursued." 2015‑12‑22 20:31:27 2015 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Surrey And Sussex Healthcare NHS Trust v Ms AB [2015] EWCOP 50, [2015] MHLO 121 — "This is an application by the Surrey and Sussex Healthcare NHS Trust for the court to give permission for the respondent, Ms AB, undergoing an above the knee amputation of her left leg. ... On the basis of the agreed psychiatric evidence, which I accepted, I was satisfied that Ms AB lacks the capacity to make a decision about her medical treatment and surgery. ... I am completely satisfied that, very sadly, the only best interests decision I can make is to give permission for the above knee amputation of Ms AB's left leg to be undertaken. I approve the use of reasonable restraint before, during and subsequent to surgery as is necessary to safeguard and protect her, including sedation. Further, I authorise the deprivation of her liberty insofar as it is necessary to perform the procedure." 2015‑12‑22 20:17:58 2015 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Dorset County Council v PL [2015] EWCOP 44, [2015] MHLO 117 — "The Applicant council seeks declarations that: (a) it is in PL’s best interests to move to ‘OL’, a care home in Lincolnshire, after a period of transition; and (b) it is in PL’s best interests to have restricted and supervised contact with his mother AL at an off-site location. ... The issues for the court to determine were where PL should live, more particularly OL or CC and with whom he should have contact, again more particularly whether contact with AL should be restricted and supervised and take place at an off-site location." 2015‑12‑21 23:38:24 2015 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re X [2015] EWCOP 36, [2015] MHLO 110 — "These proceedings are concerned with X, a young man of 25 who currently lives in a care home. They began as an application by his mother, AY (who is his appointed welfare deputy and has acted throughout without the benefit of legal representation), in respect of his prescribed medication. X was subsequently detained under the Mental Health Act and the issues before the Court were redefined to address AY's concerns as to X's physical health (in particular, the condition of his bowels) and whether the treatment she supported, in the form of dietary exclusion and supplements, fell within the powers of the Mental Health Act or the authority of her deputyship. In the course of proceedings, X has been discharged from detention under the Mental Health Act and the parties have been able to agree a community placement for him, where he is now settled. The issues which remain for the determination of the Court relate to his best interests in relation to diet and whether the welfare deputyship (which is currently suspended) should be restored or discharged. In determining those issues, the Court is asked to reach a series of findings of fact." 2015‑12‑21 23:01:17 2015 cases, Best interests, Deputyship cases, Judgment available on Bailii, No summary, Transcript


A Local Health Board v AB [2015] EWCOP 31, [2015] MHLO 95 — "I conclude that: (a) AB lacks capacity to conduct these proceedings herself. (b) AB lacks capacity to make her own decisions about whether to consent to medical treatment for her cardiac condition including dental surgery. (c) Insofar as the jurisdiction of the court is excluded because of the operation of the MHA and MCA, the inherent jurisdiction should be exercised to grant a declaration that it is lawful and in AB's interests to have the proposed medical treatment administered by the Applicant to her. (d) The inherent jurisdiction should be exercised to grant a declaration that it is lawful and in her best interests for AB to be deprived of her liberty to travel to and to remain at the hospital for the proposed medical treatment but that such physical and/or chemical restraint as may be required to deliver the treatment shall bear in mind the need to maintain her dignity to the maximum extent reasonably possible." (Caution: in relation to paragraph [54], on the MCA eligibility test, see An NHS Trust v A [2015] EWCOP 71, [2015] MHLO 91.) 2015‑11‑13 23:00:17 2015 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript


A Hospital NHS Trust v CD [2015] EWCOP 74, [2015] MHLO 94CD was willing to have the total abdominal hysterectomy, in order to remove two very large ovarian growths, which the medical experts recommended. (1) Mostyn J held that she lacked capacity in relation to this but that it was in her best interests to have the surgery. (2) The correct way to interpret the MCA ineligibity rules is as follows: "if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn't (obviously) so she isn't ineligible." (3) In relation to deprivation of liberty the judge noted: "In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054! at para 32 the Court of Appeal stated 'even if Cheshire West is wrong, there is nothing confusing about it'. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court's test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated 'anyone who deals with this day by day knows this is confusing'. What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in Bournemouth Borough Council v PS [2015] EWCOP 39, [2015] MHLO 112, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that 'there is nothing confusing' about the test. I do not accept the criticism that my approach to these cases is 'distorted' by my 'passionate' and 'tenacious' belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court's test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse. The confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to." 2015‑11‑13 22:53:01 2015 cases, Best interests, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript


Aidiniantz v Riley [2015] EWCOP 65, [2015] MHLO 81 — "These proceedings in the Court of Protection are the latest setting for the poisonous feud between the children of Mrs Grace Aidiniantz. On this occasion, they dispute where their mother should live, who should care for her, who should see her, and whether her finances should be investigated." 2015‑10‑31 20:34:19 2015 cases, Best interests, COP costs cases, Judgment available on Bailii, No summary, Transcript


CWM TAF University v F [2015] EWHC 2533 (Fam), [2015] MHLO 75 — "This application was issued ... for a declaration under s.15 of the Mental Capacity Act: Firstly, that F lacks capacity; secondly, to make decisions about her clinically assisted nutrition and hydration; and, thirdly, the central issue, that it is not in F's best interests for clinically assisted nutrition and hydration to be continued, that it is lawful and in her best interests for clinically assisted nutrition and hydration to be withdrawn." 2015‑10‑30 22:44:50 2015 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re LC: Bedford Borough Council v Mrs C and Mr C [2015] EWCOP 25, [2015] MHLO 52 — "The proceedings concern Mrs C’s best interests in relation to residence and her contact with her husband and a deprivation of her liberty. ... There is also in existence a separate application by the local authority for a deputy for property and affairs to be appointed for her." 2015‑07‑20 20:26:13 2015 cases, Best interests, Judgment available on Bailii, No summary, Transcript


The Mental Health Trust v DD [2015] EWCOP 4, [2015] MHLO 50 — "For the reasons set out above, I propose to declare: (i) pursuant to section 15 of the 2005 Act that DD lacks capacity to litigate in relation to the relevant issues; (ii) pursuant to section 15 of the 2005 Act that DD lacks capacity to make decisions in respect of contraception; (iii) pursuant to section 15 of the 2005 Act that it is lawful and in DD's best interests to undergo a therapeutic sterilisation and authorise the applicants' staff to do so, together with the provision of all ancillary care and treatment; Further, (iv) subject to certain safeguards (more fully set out in the care plan and reflected in the proposed draft order) being required, I propose to authorise the applicants to remove DD from her home and take steps to convey her to hospital for the purposes of the sterilisation procedure, and authorise the use of reasonable and proportionate measures to ensure that she is able to receive the said treatment even if any deprivation of liberty is caused by the same; (v) I authorise the applicants to take such necessary and proportionate steps to give effect to the best interests declarations above to include, forced entry and necessary restraint, and authorise that any interferences with DD's rights under Article 8 of the ECHR as being in her best interests." 2015‑07‑20 20:15:19 2015 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re MN (An Adult) [2015] EWCA Civ 411, [2015] MHLO 41 — "The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself." 2015‑05‑24 21:01:44 2015 cases, Best interests, ICLR summary, Judgment available on Bailii, Transcript


LB Hillingdon v PS [2015] MHLO 3 (COP)Faced with an impasse about contact between PS and M, Hillingdon asked the court to determine what was in PS's best interests. Permission was required under MCA 2005 s50 and CS objected to the grant of permission. The factors in s50 required for permission were satisfied. Also, the court could give effect to the rules in accordance with the overriding objective (dealing with the case justly, including having regard to proportionality). The judge gave the following directions: (a) M to be served with a copy of the application and joined as a party; (b) CS to be joined as party; (c) permission to the attorneys to intervene; (d) final hearing listed and provision made for statements to be filed; (e) Court of Protection Visitor to visit PS to ascertain his wishes and feelings and to gather information relevant to the issue of contact in the same way Cafcass would report in a children's case; (f) costs reserved. 2015‑01‑29 15:33:43 2015 cases, Best interests, Brief summary, Transcript


The Mental Health Trust v DD [2014] EWCOP 44, [2014] MHLO 141 — "I do not propose to give a detailed judgment in this case today in light of the large measure of agreement. However, I want to make some comments about the proposed draft order. ... In preparation for this four day hearing, in which I was to be considering questions of long-term contraception or sterilisation of DD, I have read with care ..." 2015‑01‑14 22:52:56 2014 cases, Best interests, Judgment available on Bailii, No summary, Transcript


LB Tower Hamlets v TB [2014] EWCOP 53, [2014] MHLO 130 — "All parties are agreed that TB lacks capacity to make decisions concerning her residence, her care and her contact with SA. The issues that I have to decide are these: (i) Where should TB live in her best interests? ... (ii) If TB does not return to 9 Emerald Mansions what should her contact be with SA, in her best interests? (iii) Does SA have the capacity to consent to sex? This is an abstract question if she does not return to 9 Emerald Mansions, but a very real one if she does. (iv) Whatever I decide about residence does her care regime amount to a deprivation of liberty within the terms of Article 5?" 2014‑12‑31 10:58:36 2014 cases, Best interests, Capacity to consent to sexual relations, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript


An NHS Foundation Trust v Ms X [2014] EWCOP 35, [2014] MHLO 96An NHS Foundation Trust sought declarations that: (a) it is not in Ms X's best interests to be subject to further compulsory detention and treatment of her anorexia nervosa, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may prolong her life; (b) it is in her best interests, and shall be lawful, for her treating clinicians not to provide Ms X with nutrition and hydration with which she does not comply. The judge decided that X should not be compelled to have treatment for her anorexia, and made the declarations, but expressed the hope that she would realise the benefit of treatment. 2014‑10‑09 10:03:45 2014 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Re X (amputation) [2014] MHLO 89 (CA)The Court of Protection had decided that X lacked capacity to consent to a below-knee amputation to treat her foot infection, and that this treatment was in her best interests. The Court of Appeal refused her son permission to appeal. (1) The judge's decision on capacity was correct. (2) The judge was also correct on best interests: there was no need for further tests to determine best interests; the medical experts had no difficulty reaching their conclusions and there was no disagreement; the alternatives were unsuitable (for example, antibiotics would cease to be effective); the son was worried about death in theatre, but in fact surgery gave X the best chance of survival; her condition was deteriorating and the infection would spread without amputation. (Summary based on Lawtel report of ex tempore judgment - transcript not available at time of writing.) 2014‑08‑11 19:55:46 2014 cases, Best interests, Brief summary, No transcript


LBX v K, L and M [2013] EWHC 4170 (Fam), [2013] MHLO 149 — "In the judgment I handed down this morning I concluded that L has capacity in relation to decisions about where he should live, the care he receives and contact with his family. Having made that decision I then considered the question as to whether I should invoke the inherent jurisdiction as L was a vulnerable adult. ... I accept this is a difficult balance but, in this case, I am entirely satisfied that because of the vulnerability that this particular person has, and the very clear psychiatric evidence dating back to Dr. Halstead's report in 2007, endorsed by the various witnesses that gave evidence earlier this week, that he remains vulnerable to overwhelming emotional issues which could compromise his capacity. He needs to be able to retain his capacity in circumstances where he has emotional safety. That can only be where there is a proportionate structure in place that enables him to be able to maintain his capacity in a relatively calm environment, and free from the emotional maelstrom, as I have described it, resulting from the relationship that he has with his father in particular, and the relationship the father has with those who support L in the care that he has." 2014‑08‑07 13:39:57 2013 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, Transcript


Sandwell and West Birmingham Hospitals NHS Trust v CD [2014] EWCOP 23, [2014] MHLO 83(1) Capacity and best interests in relation to life-sustaining treatment. (2) Guidance regarding out-of-hours applications involving medical treatment. 2014‑08‑05 22:47:04 2014 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Re A (A Child) [2014] EWCOP 920, [2014] MHLO 77 — "A, the young person with whom I am concerned, will be 16 years old in June of this year. At the time I am hearing this application, brought by an NHS Foundation Trust, A weighs just 5 ½ stones and has been in hospital for 10 months. ... On the 9th January 20014 the Trust applied for declarations inter alia (i) that it is lawful and in the best interest of A to have a Nasojejunal tube inserted and reinserted on any occasion that it is removed; (ii) it is lawful and in the interest of A to receive fluids, nutrition and medications through a Nasojejunal tube; (iii) it is lawful and in A's best interest to receive treatment (to include psychiatric, psychological and medication as prescribed by her consultant treating psychiatrist) and assessment by the child and adolescent mental health team." 2014‑08‑01 12:34:31 2014 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Norfolk CC v PB [2014] EWCOP 14, [2014] MHLO 75 — "The issue is whether PB has capacity to decide whether to live with TB, what contact to have with him, and what her care arrangements should be (that issue, it is common ground, includes where she is to live); and, if she is to be accommodated in local authority care, whether she is deprived of her liberty and if so whether this should be authorised by the Court. There is an interim declaration to that effect." The judge comments on the capacity test (causative nexus), the inherent jurisdiction, and case management in the Court of Protection. 2014‑08‑01 11:56:35 2014 cases, 39 Essex Street summary, Best interests, Deprivation of liberty, Judgment available on Bailii, Transcript


County Durham and Darlington NHSFT v PP [2014] EWCOP 9, [2014] MHLO 65 — "The Trust seeks the Courts authority, and corresponding declarations, as to P's treatment, in particular the possible withdrawal, or non-escalation of, life-sustaining treatment as part of an end of life care package. The Trust contends (and interim declarations have been made to this effect already) that P lacks the capacity to litigate, and to make decisions in relation to the serious medical treatment in issue in this application. Specifically the Trust seeks the following declarations pursuant to section 15(1)(c) of the Mental Capacity Act 2005: (a) That it is lawful and in P's best interests to continue to receive artificial hydration via subcutaneous injection. (b) That it is lawful and in P's best interests that the Trust's treating clinicians shall be permitted: (i) Not to provide artificial nutrition by a percutaneous endoscopic gastrostomy tube or via an alternative artificial feeding regime; and (ii) Not to resuscitate her in the event of either a cardiac or respiratory arrest." 2014‑08‑01 10:44:12 2014 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, No summary, Transcript


The Mental Health Trust v DD [2014] EWCOP 13, [2014] MHLO 62 — "By judgment dated 4 July 2014 ... I set out my reasons for determining that it is in the best interests of DD, a pregnant woman who lacks capacity to make the decision for herself, for her baby to be delivered imminently by caesarean section. Further to a scheduled hearing which took place in the following week, I now consider: (i) Whether it is in DD's best interests that the Applicants should be authorised (a) to provide DD with education in relation to contraception, and then (b) to assess her capacity to make decisions in relation to contraception; ... (ii) Whether I should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include forced entry into her home, and to use such restraint as is deemed necessary to convey her to an appropriate place to provide the opportunity for such education and assessment; (iii) Whether there is reason to believe (per section 48 Mental Capacity Act 2005) that DD currently lacks the capacity to make decisions in relation to contraception; (iv) If there is reason to believe that she currently lacks capacity (in relation to (iii) above), whether it is in DD's best interests that a short-term contraception be administered by way of injection (and authorise the Applicants' staff to do so)." 2014‑08‑01 10:23:23 2014 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, Transcript


The Mental Health Trust v DD [2014] EWCOP 11, [2014] MHLO 61 — "DD is 36 years old. She is at an advanced stage of pregnancy. She has had an extraordinary and complex obstetric history and is now expecting her sixth baby. She has a mild to borderline learning disability, and an autistic spectrum disorder. By application dated 23 May 2014, the Applicants seek declarations and orders in relation to the care and health of DD during the final stage of her current pregnancy, and in the safe delivery of the unborn baby. Specifically, and significantly, they seek a declaration as to the lawfulness in arranging for DD's baby to be delivered by planned caesarean section. The Applicants seek a further order authorising the conduct of an assessment of DD's capacity to make decisions about contraception, following the imminent birth. DD's five older children are all cared for by permanent substitute carers; four of the children have been adopted." 2014‑08‑01 10:18:52 2014 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, Transcript


The Mental Health Trust v DD [2014] EWCOP 8, [2014] MHLO 60 — "The issues for decision relate to DD, a woman in her mid thirties with diagnoses of autistic spectrum disorder and borderline learning disabilities. In summary they are: (a) Whether DD lacks capacity to make decisions in relation to her healthcare and, in particular, lacks capacity to consent to a placental localisation scan and an ante natal assessment; (b) Whether it is in her best interests to undergo such a scan and assessment; (c) Whether the Applicants should be authorised to take such necessary and proportionate steps so as to give effect to the 'best interests' declaration to include forced entry, restraint and sedation. This brief judgment is given for two reasons (i) to set out my capacity and best interests' determinations and (ii) for the benefit of Cobb J who is to be the allocated judge at two further hearings." 2014‑08‑01 10:17:05 2014 cases, Best interests, Judgment available on Bailii, No summary, Transcript


An NHS Trust v J [2014] EWCOP 2675, [2014] MHLO 58 — "This application concerns an elderly lady of 79 years whom I shall call 'Mrs J'. She has longstanding mental health problems and now also cancer. Many professionals concerned for her welfare have with much care and diligence come to the view that it is in her best interests for her to have investigations and to receive treatment; but she is resistant and, in spite of all professional efforts and advice, not willing to consent. Accordingly, on 3rd July 2014, the relevant NHS Trust issued a notice of application in the Court of Protection seeking declarations: (1) that Mrs J lacks capacity to litigate in these proceedings; (2) that she lacks capacity to take decisions about the proposed medical investigations and treatment; and (3) that it is in her best interests to have those investigations and treatment. ... Taking all aspects of the case into account and weighing them up, I have come to the conclusion that Mrs J's best interests would be served by the proposed investigations and treatment. I shall make declarations accordingly, as already discussed with Counsel, detailing the necessary treatment and other consequential arrangements." 2014‑08‑01 10:02:29 2014 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re X (A Child) [2014] EWHC 1871 (Fam), [2014] MHLO 41 — "Some time ago I heard an urgent application relating to a girl who at the date of the hearing before me was aged 13 years and 9 months. She was at the time the subject of ongoing care proceedings being heard by another judge. She was approximately 14 weeks pregnant. The father of the unborn child was aged 14. The issue before me was whether or not the pregnancy should be terminated. The care proceedings have not yet come to a conclusion but I do not think that I should further delay giving judgment explaining my decision and my reasons for it. ... Given that X's expressed wishes at the end of the hearing thus accorded with my assessment of her best interests, it was clearly appropriate for me to supply the necessary consent to enable the termination to proceed." 2014‑06‑13 21:34:54 2014 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Northamptonshire Healthcare NHS Foundation Trust v ML [2014] EWCOP 2, [2014] MHLO 31 — "The Applicants seek declarations that: (i) ML lacks capacity to litigate and/or to make decisions about his care and /or residence; (ii) it would be in ML's best interest to reside at Bestwood Hospital; (iii) it would be in ML's best interest to undergo treatment at Bestwood Hospital until such time as he is able to be discharged to a suitable assisted living package in the community. Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, despite their laudable objectives, they have made it difficult for me, at times, to get a clear picture of how ML functions and how his needs might best be met." 2014‑05‑18 00:25:31 2014 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript


RB v Brighton and Hove CC [2014] EWCA Civ 561, [2014] MHLO 25This is the executive summary and conclusion from the Court of Appeal decision: "In June 2007 RB sustained a serious brain injury in an accident. He was treated for eight months in hospital and then transferred to a care home, S House. In 2011 RB ceased participating in rehabilitation programmes and proposed to leave S House. The staff at S House considered that RB was not capable of independent living. Because of his physical and mental disabilities he was likely to (a) resume his former chaotic lifestyle and (b) to suffer serious or fatal injuries in consequence. The Council granted a standard authorisation pursuant to schedule A1 to the Mental Capacity Act 2005 ('MCA'), which enabled staff to detain RB at S House. RB brought proceedings in the Court of Protection to terminate the standard authorisation. The Court of Protection dismissed the application and RB appealed to the Court of Appeal. He contends that two preconditions for deprivation of liberty are not satisfied, namely the mental capacity requirement (set out in paragraph 15 of schedule A1) and the best interests requirement (set out in paragraph 16 of schedule A1). In my view RB's appeal should be dismissed. Because of his brain injury RB is unable to use and weigh relevant information. He does not appreciate the dangers of resuming his former chaotic lifestyle in his present condition. Therefore the mental capacity requirement is satisfied. If RB is discharged into the community, he is likely to revert to alcoholism and a chaotic lifestyle. Given his current disabilities, this is likely to lead to serious injury. Therefore confinement in S House, at least for the time being, is in RB's best interests. I reject the submission that IM v LM [2014] EWCA Civ 37! somehow governs the outcome in this case. The court must apply the provisions of the MCA, not judicial glosses on the statute." [Permission to appeal to the Supreme Court was refused, and permission to appeal to Strasbourg is being sought.] 2014‑05‑10 13:59:17 2014 cases, Best interests, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript


Westminster City Council v Sykes [2014] EWHC B9 (COP), [2014] MHLO 11 — "It is my view that it is in Ms S's best interests to attempt a one-month trial of home-based care. Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed. ... Having thought about the issue carefully, I have decided on balance - and it is quite finely balanced - that lifting the usual veil of anonymity is appropriate. In my opinion this is a relatively unusual case where the case for being named outweighs that in favour of continuing the usual anonymity. MS’s personality is a critical factor. She has always wished to be heard. She would wish her life to end with a bang not a whimper. This is her last chance to exert a political influence which is recognisable as her influence." 2014‑03‑04 15:35:43 2014 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re L (A Child) [2013] EWCA Civ 1557, [2013] MHLO 133Mother unsuccessfully sought permission to appeal against Court of Protection order (a) that her son lacked capacity in relation to welfare matters, and (b) that it was in his best interests to remain at his current placement for at least a year and finish at the existing school (as opposed to living with the mother and attending a school near her, or moving to a residential home near the mother and have some education in her area). 2013‑12‑30 16:29:47 2013 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


RGB v Cwm Taf Health Board [2013] EWHC B23 (COP), [2013] MHLO 128 (COP)At a time when she had been assessed to have capacity, Mrs B left her husband and did not wish him to see her. On the basis of these wishes, when she was admitted to hospital with dementia Mr B was refused access. The husband unsuccessfully sought a declaration that the Health Board had acted unlawfully. 2013‑12‑30 12:04:18 2013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


ACCG v MN [2013] EWHC 3859 (COP), [2013] MHLO 104The Court of Protection may, exceptionally, in determining whether a local authority has breached convention rights, consider best interests beyond the available options. "[86] I find therefore that: (i) As restated by Baroness Hale in Aintree 'the court has no greater powers than the patient would have if he were of full capacity'. (ii) Judicial review remains the proper vehicle through which to challenge unreasonable or irrational decisions made by 'care providers' and other public authorities. (iii) There may be rare cases where it appears to those representing a party that a public authority, in failing to agree to provide funding for or a particular form of care package, is acting in a way which is incompatible with Convention rights. In those circumstances, notwithstanding the fact that such an option is not available and before the court, the court may exceptionally, pursuant to a formal application made under s7(1)(b) HRA, conduct an assessment of the person's best interests beyond the scope of the available options, in order to determine whether the public authority has acted in a way which is disproportionate and incompatible with a convention right. (iv) Protection of the Article 8 rights of the parties are otherwise protected by a consideration of them by the court as part of all the relevant circumstances when carrying out a section 4 MCA 2005 best interests assessment. [87] In all the circumstances I accept the submission of ACCG that, contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents' house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s4 MCA2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests" 2013‑12‑07 21:22:29 2013 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re AA [2012] EWHC 4378 (COP), [2012] MHLO 182 — Judgment of Mostyn J in 'Italian forced caesarian' case. [Summary required.] 2013‑12‑04 17:56:37 2012 cases, Best interests, No summary, Transcript


Re VT (minimally conscious state): An NHS Foundation Trust v VT [2013] EWHC B26 (Fam), [2013] MHLO 99 (COP)The Trust obtained a declaration covering a decision not to provide intensive care or resusistation in specified circumstances. 2013‑11‑19 22:56:44 2013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Aintree University Hospitals NHS Foundation Trust v David James [2013] UKSC 67, [2013] MHLO 95 — "This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?" [Summary required.] 2013‑10‑31 20:22:19 2013 cases, Best interests, Judgment available on Bailii, No summary, Transcript


A Local Authority v ED [2013] EWHC 3069 (COP), [2013] MHLO 92 — "The issues: (1) Does she have litigation capacity? (2) Does she have capacity to make decisions as to: (i) Where she should live; (ii) Contact; (iii) Her personal care needs; (iv) The removal of her pubic hair; (v) Whether or not she can consent to give an Achieving Best Evidence interview. (3) If the answer to any of the above is 'no', what are her best interests in respect of each? (4) Should there be a protocol governing the enquiries to be made, (which could be used in the investigation by the police/Local Authority and/or Official Solicitor if in post), of purported allegations made by her as to, for example, physical assaults upon her? If yes, what should be the operative terms and conditions of such a protocol?" [Summary required.] 2013‑10‑23 23:06:53 2013 cases, Best interests, COP costs cases, Judgment available on Bailii, No summary, Transcript


Re K (cancer) [2013] MHLO 83 (COP)The press has reported this case as follows: (1) It was suspected that K had cancer of the womb, but she was took frightened to undergo an diagnostic examination. (2) Moylan J decided that (a) K lacked capacity to take decisions about medical treatment; (b) it was in her best interests to undergo a hysteroscopy, which is more detailed and invasive than the normal ultrasound, on the basis that her fear meant she would be under general anaesthetic anyway. 2013‑08‑30 22:36:36 2013 cases, Best interests, Brief summary, Transcript


MK v JK [2013] EWHC 4334 (COP), [2013] MHLO 81 — "MK made an application to the court to be appointed Personal Welfare Deputy for JK and that is how these proceedings commenced. However, all parties accept that the one issue is residence and that it is to be determined by a court ... it is in his best interests to move to the CNC Home on the basis that his placement at the Home will be retained for eight weeks so that he has somewhere to return should the move to the CNC Home fail... I think it would be very rare for the court to consider it right to delegate its issue-resolving function to a Deputy on any significant issue of principle such as residence, type of care, treatment and such like ... Article 8 of the Convention rights ... I do think that putting in place a State-appointed decision-maker – which is what a Deputy is – is a considerable interference with family life and would therefore have to justify the twin requirements of legitimate aim and proportionality. One can never say never, but it is hard at the moment to envisage how in most cases a Personal Welfare Deputy could ever be so justified." [Summary required.] 2013‑08‑30 20:11:45 2013 cases, Best interests, Judgment available on Bailii, No summary, Transcript


A Local Authority v WMA [2013] EWHC 2580 (COP), [2013] MHLO 79 — "The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty. ... there is no doubt in my mind it is WMA's best interests to move to B ... if one looks at WMA's isolation, the refusal to engage with outside agencies, the poor conditions in the home and the absence of friends, save one for MA, of both mother and son and contrasts them with the opportunities for WMA at B then the opportunity for a higher quality private life is clear. ... I confess for my part it is not easy to follow the reasoning of the Cheshire West decision. That said, I agree strongly with the Official Solicitor that moving WMA to B would be a deprivation of liberty ... The local authority now concedes there will be a deprivation of liberty, at least because the move will be involuntary. I would go further and note that WMA at least in the short term objects to the arrangements for him and he may seek to leave. We simply do not know. So being in B may in itself be a deprivation of liberty. I will not delve into the meaning of 'restraint' and 'deprivation of liberty' as analysed in the Cheshire West and Chester case. ..." [Summary required.] 2013‑08‑24 14:26:37 2013 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript


Re SB (A Patient: Capacity To Consent To Termination) [2013] EWHC 1417 (COP), [2013] MHLO 48SB's desire for an abortion coincided with her stopping her medication for bipolar affective disorder, which led to the Trust seeking decisions on capacity and best interests. (1) Even if aspects of her decision-making were influenced by paranoid thoughts in relation to lack of support from her husband and her mother, SB also had a range of rational reasons, and had capacity to make the decision. (2) Interesting aspects to the case include: (a) the judge disagreed with the two psychiatrists who believed SB lacked capacity; (b) he appeared to consider the question of being 'unable' to make a decision separately in relation to its ordinary meaning (whether SB had in fact made a decision, para 38) and its legal meaning by reference to MCA 2005 s3(1) (whether she could understand the relevant information etc, para 39); (c) the Official Solicitor asked for his appointment as litigation friend to be ended, and this request was granted (para 30); (d) the judge granted this request having accepted psychiatric evidence that this was a case 'where P ceases to be a person who lacks capacity to conduct proceedings himself but continues to lack capacity in relation to the matter or matters to which the application relates' (para 28, rule 147); (e) in relation to the threshold for capacity, the judge held that SB's decision to have an abortion 'is of course a profound and grave decision, but it does not necessarily involve complex issues' (para 44). 2013‑06‑03 21:57:06 2013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


PS v LP [2013] EWHC 1106 (COP), [2013] MHLO 43(1) It was in LP's best interests not to see her estranged family: before losing capacity due to a cerebral aneurism, she had taken the decision that her future was with her new partner and that she wished to break with the past. (2) Contact should only commence in future if LP becomes capable of expressing a view to that effect, and the family should be kept informed in relation to this approximately every six months. 2013‑05‑05 23:03:20 2013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


A County Council v E [2012] EWHC 4161 (COP), [2012] MHLO 176 — "This case involves the personal welfare of two young women, E and K. E is 26 years old and K is 24. Both have a diagnosis of Fragile X syndrome and associated learning disabilities, as confirmed by a consultant psychiatrist in a report of 7 August 2010. E is selectively mute. K also has a diagnosis of Attention Deficit Hyperactivity Disorder ('ADHD')." [Summary required.] 2013‑03‑28 08:09:28 2012 cases, Best interests, Judgment available on Bailii, No summary, Transcript


HT v CK [2012] EWHC 4160 (COP), [2012] MHLO 175 — "This decision deals with residence, contact and financial arrangements for CK ('C' or 'Ms K'). In particular, the court must decide whether it is in her best interests to remain where she is living and the appropriate contact arrangements" [Summary required.] 2013‑03‑28 08:04:48 2012 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Aintree University Hospitals NHS Foundation Trust v David James [2013] EWCA Civ 65, [2013] MHLO 17 — "On 6th December 2012 Mr Justice Peter Jackson ... declined to make the declarations sought by the appellant, the hospital treating DJ, that subject to the agreement of his clinical team, it would be lawful, being in his best interests, for the following treatment to be withheld in the event of a clinical deterioration: cardiopulmonary resuscitation; invasive support for circulatory problems; renal replacement therapy in the event of deterioration in renal function." The Court of Appeal allowed the Trust's appeal. [Summary required.] 2013‑03‑26 22:22:30 2013 cases, Best interests, Judgment available on Bailii, No summary, Transcript


An NHS Trust v Dr A [2013] EWHC 2442 (COP), [2013] MHLO 4Dr A was refusing food in protest at a UK Border Agency decision. (1) He was suffering from a delusional disorder which impaired the functioning of his brain by affecting his ability to use or weigh up information relevant to his decision whether or not to accept nourishment. (2) It was in his best interests for the court to make an order permitting the forcible administration of artificial nutrition and hydration. (3) (a) That treatment would involve deprivation of liberty, but Dr A was ineligible to be deprived of his liberty under the MCA because he was already detained under the MHA. (b) However, he could not be given the treatment under the MHA because it was not for a mental disorder, but a physical disorder; although the physical disorder was in part a consequence of the mental disorder, it was not obviously either a manifestation or a symptom of the mental disorder. (c) The solution to the problem was to authorise treatment under the High Court’s inherent jurisdiction as being in Dr A’s best interests. 2013‑01‑30 23:19:00 2013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Re AW (Permanent Vegetative State); The NHS Trust v AW [2013] EWHC 78 (COP), [2013] MHLO 3AW was in a permanent vegetative state, having suffered a spontaneous, severe intra-cerebral haemorrhage in 2008. The NHS Trust responsible for AW's care sought a declaration that it would be lawful and in her best interests to withdraw active medical treatment, including specifically artificial nutrition and hydration, even though this would lead to AW's death. The application was supported by AW's family, by all the medical staff who looked after her, by the evidence of the expert witnesses provided reports, and by the Official Solicitor on behalf of AW herself. (1) The judge's findings were as follows: (a) AW is in a permanent vegetative state; (b) there will be no change or improvement in her condition; (c) there is no treatment available which could confer any benefit and that accordingly her treatment regime is futile; and (d) the suffering caused by withdrawal of artificial nutrition and hydration will be managed by appropriate use of pain relief in accordance with the plan that has been created for AW. (2) The following declarations were made: (a) AW lacks capacity to litigate in these proceedings or to make decisions about the medical treatment she should receive, including as to the withdrawal of artificial nutrition and hydration and other life-sustaining treatment; (b) it is lawful and in AWs best interests for life-sustaining treatment in the form of artificial nutrition and hydration to be withdrawn; and (c) it is in AW's best interests to receive such treatment and nursing care as may be appropriate to ensure that she retains the greatest dignity until her life ends. (3) By agreement, the NHS Trust was ordered to pay half of the costs of the Official Solicitor, to be subject to detailed assessment if not agreed. 2013‑01‑29 22:45:19 2013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Re P (abortion) [2013] EWHC 50 (COP), [2013] MHLO 1(1) The solicitor who was one of P's deputies queried whether P had capacity in relation to whether to continue with her pregnancy or have an abortion. (2) Hedley J held that she manifestly lacked litigation capacity but did have capacity in relation to continuing the pregnancy. (3) Generally courts and health officials should not try to decide whether P would be able to bring up a child but should instead concentrate solely on whether the pregnancy itself is in her best interests (the reasoning being that once a child is born, if the mother does not have the ability to care for a child, society has perfectly adequate processes to deal with that). (4) The judge also stated that '[t]he purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do'. [Summary based on press article; judgment now available.] 2013‑01‑25 11:36:58 2013 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


Re L; The NHS Trust v L [2012] EWHC 2741 (COP), [2012] MHLO 159The Trust sought a declaration that it was not in the best interests of L to be the subject of forcible feeding or medical treatment notwithstanding that in the absence of such nutrition and treatment she would inevitably die. The court declared (to paraphrase) that: (1) L lacked capacity to litigate and to make decisions in relation to the serious medical treatment at issue, specifically, (a) nutrition and hydration, and (b) dextrose for hypoglycaemic episodes. (2) L had capacity to make decisions as to anti-biotic treatment, analgesia and treatment of her pressure sores. (3) In L's best interests, the clinicians were permitted: (a) to provide nutrition and hydration and medical treatment where L complies; (b) to administer dextrose solution to L despite her objections where immediately necessary to save life; (c) not to provide L with nutrition and hydration with which she does not comply (all reasonable steps to gain L's co-operation having been taken); (d) to provide palliative care in the terminal stage of L's illness. 2012‑12‑23 00:30:19 2012 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


A Local Health Board v J [2012] MHLO 158 (COP)(1) The court made the following declaration and orders as sought by the Health Board: (a) J lacked capacity to make decisions regarding her medical treatment including decisions regarding the withdrawal of ANH and other life-sustaining treatment; (b) J was in a permanent vegetative state and had no prospect of recovery; (c) there were no further investigations/treatment which should be undertaken; (d) it was in J's best interests for ANH to be withheld; (e) ANH might be withdrawn lawfully by the applicant, or responsible attending medical practitioners or nursing staff; and (f) it was in her best interests to receive such treatment and nursing care as was appropriate to ensure that she retained the greatest dignity until her life came to an end. (2) In relation to the second declaration, the court considered evidence that J had said 'die' several times, and concluded that this had been (misinterpreted) 'vocalisation' (a moan or groan often repeated, and often seen in PVS) rather than 'verbalisation' (which would be consistent with a minimally-conscious state). [Summary based on All ER (D) report of ex tempore judgment.] 2012‑12‑21 01:53:08 2012 cases, Best interests, Brief summary, No transcript


NHS Trust v K [2012] EWHC 2922 (COP), [2012] MHLO 150The Trust proposed to carry out surgery on K which could potentially cure her of cancer but which itself (given her co-morbidities including her 20-stone weight) raised a considerable risk of death. (1) K lacked capacity due to her chronic mental illness, and in particular her delusional belief that she did not have cancer, to make informed decisions about major medical treatment. (2) Orders were made that certain specified treatment would be lawful, subject to powers of veto given to specified people. 2012‑12‑20 23:33:31 2012 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Re KH (A child); An NHS Trust v Mr and Mrs H [2012] EWHC B18 (Fam), [2012] MHLO 142 — "This is an application by an NHS Trust for declarations in relation to the best interests of a boy known in the proceedings as KH. The Trust seeks approval of a medical treatment plan which comes before the court because there are some matters that are not agreed and because the treatment plan involves the withholding of life-sustaining treatment in the event of a serious deterioration in KH's condition." [Summary required.] 2012‑12‑20 00:15:32 2012 cases, Best interests, Judgment available on Bailii, No summary, Transcript


An NHS Trust v DJ [2012] EWHC 3524 (COP), [2012] MHLO 138 — "As a result of his illness, DJ does not have the capacity to make decisions about his medical treatment. The trust has brought the proceedings because there is longstanding disagreement between the family and the doctors about what treatment should be given. This requires the court to make an assessment of DJ's best interests within the framework of the Mental Capacity Act 2005. If that assessment supports the view taken by the doctors, a declaration may be granted endorsing the lawfulness of their approach." [Summary required.] 2012‑12‑19 21:16:48 2012 cases, Best interests, Judgment available on Bailii, No summary, Transcript


NHS Trust v Baby X [2012] EWHC 2188 (Fam), [2012] MHLO 99 — "The question in this case is whether a baby known as X should be removed from a ventilator and made the subject only of palliative care. As the evidence is that he will almost certainly die within minutes, or at best hours, of such removal, it will be readily apparent that this case is both tragic and difficult. Given the nature of the question, I have thought it right to deliver this judgment in open court but nothing of course may be reported which might reasonably lead to the identification of X or his parents. An issue has arisen over the reporting restrictions order in this case; I intend to deal with this matter quite separately to this judgment." [Detailed summary available.] 2012‑09‑30 21:38:07 2012 cases, Best interests, Detailed summary, Judgment available on Bailii, Transcript


Re MW; LB Hammersmith and Fulham v MW [2012] MHLO 82 (COP)(1) MW lacked capacity to make decisions in relation to contact with his childhood friend JC. (2) It was not in MW's best interests for JC to visit MW's home, so an order was granted restraining JC from doing so; this was endorsed with a penal notice because of previous breaches of an injunction. (3) The local authority and Official Solicitor's requested that MW, who lacked litigation capacity, should not attend the hearing because this would be stressful and not conducive to the maintenance of his good mental health: the court acceded to this application. (4) Sensitive evidence was withheld from JC, at the request of the local authority and Official Solicitor, but the court came to its final decision based on the open evidence. 2012‑08‑29 21:27:52 2012 cases, Best interests, Brief summary, Transcript


Re Steven Neary; LB Hillingdon v Steven Neary [2012] MHLO 71 (COP)The Court of Protection approved a consent order under which the London Borough of Hillingdon is to pay £35,000 damages to Stephen Neary. 2012‑07‑26 19:48:49 2012 cases, Best interests, Brief summary, Deprivation of liberty, No transcript


Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP), [2012] MHLO 55 — "E is a 32-year-old woman who suffers from extremely severe anorexia nervosa, and other chronic health conditions. On 18 May 2012, an urgent application was made to the Court of Protection by her local authority, which was concerned that her position should be investigated and protected. E's death was imminent. She was refusing to eat, and was taking only a small amount of water. She was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die in comfort. ... I found that E lacked capacity to make a decision about life-sustaining treatment and declared that it was in her best interests to be fed against her wishes with all that this entails." [Summary required.] 2012‑06‑21 21:00:14 2012 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re D; An NHS Trust v D [2012] EWHC 885 (COP), [2012] MHLO 47(1) P was in a permanent vegetative state so continued medical treatment is of no benefit to him because it is futile. (2) His letter refusing life-sustaining treatment did not comply with the MCA requirements for an advance decision so could not have been relied upon; however, had the evidence on PVS not been clear cut, the judge would have given P's previous wishes and feelings great weight. 2012‑05‑05 13:11:22 2012 cases, Advance decision cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


LB Haringey v FG (No. 2) [2011] EWHC 3933 (COP) — "There are many issues that have arisen in this case, but now the critical welfare issue is whether or not H should be returned home to live with her mother. This is an outcome sought by the mother, but opposed both by the Local Authority and by the Official Solicitor as litigation friend to H." [Summary required.] 2012‑05‑05 12:50:54 2011 cases, Best interests, Judgment missing from Bailii, No summary, Transcript


Re L; K v LBX [2012] EWCA Civ 79, [2012] MHLO 7Article 8 does not require that maintenance of existing family life arrangements be a 'starting point' in best interests decisions. 2012‑02‑08 13:05:04 2012 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Re JDS; KGS v JDS [2012] EWHC 302 (COP), [2012] MHLO 4 — "This is an application for a gift to be made to the parents of a young man who has been awarded damages for clinical negligence. The purpose of the gift is to reduce the amount of Inheritance Tax that they may have to pay on his death." [Summary to follow.] 2012‑01‑27 20:10:27 2012 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re VW; NK v VW (2010) COP 27/10/10 11744555NK sought (a) to have his mother VW removed from a care home (where she was detained under a DOLS authorisation) and placed in one more local to him, and consequently (b) to have more frequent contact than permitted by the current DOLS authorisation and (c) to be appointed welfare and financial deputy. He was refused permission to make his applications, because of medical evidence that to move VW would be detrimental to her welfare. 2012‑01‑02 10:35:54 2010 cases, Best interests, Brief summary, Transcript


Cardiff Council v Peggy Ross (2011) COP 28/10/11 12063905Cardiff Council used the Deprivation of Liberty Safeguards to prevent an elderly couple going on holiday cruise; the court decided that it was in the respondent's best interests to go on the cruise, and gave permission for ITV Wales to report that decision and broadcast interviews; later the court decided that the respondent herself had capacity to decide whether or not to go. 2011‑12‑10 14:34:17 2011 cases, Best interests, Brief summary, Transcript


Re S (Adult Patient) (Inherent Jurisdiction: Family Life); Sheffield City Council v S [2002] EWHC 2278 (Fam) — Dispute between a local authority and S‘s father, DS, as to where S should live: prior to the events which precipitated the proceedings, S had always lived at home with DS. [Summary required.] 2011‑12‑10 13:00:54 2002 cases, Best interests, Judgment missing from Bailii, No summary, Transcript


Re P; A Local Authority v PB [2011] EWHC 2675 (COP) — Case concerning residence, contact, and deprivation of liberty. [Summary required.] 2011‑11‑14 19:49:29 2011 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re FL; HN v FL and Hampshire CC [2011] EWHC 2894 (COP) — 'The primary issues requiring determination by the court were as follows: (1) FL’s capacity to make personal welfare decisions; (2) FL’s mental health needs; (3) FL’s medication; (4) The Z Home’s ability to meet FL’s physical and mental health needs; (5) Whether HN had conducted herself inappropriately or whether such conduct was justified; (6) Whether HCC and or The Z Home conducted themselves inappropriately or whether such conduct was justified; (7) Depending on the outcome of (5) and (6) whether restrictive orders should be made.' 'IPL were permitted to publish details about the case subject to the restrictions in that order.' [Summary required.] 2011‑11‑09 22:13:15 2011 cases, Best interests, Judgment available on Bailii, No summary, Transcript


LB Tower Hamlets v BB [2011] EWHC 2853 (Fam) — 'There are two sets of proceedings which concern BB. In the first, her litigation friend, sought guidance from the court under sections 16 and 18(k) of the Mental Capacity Act 2005 about the conduct of proceedings concerning BB and declarations that she a) lacks capacity to conduct those proceedings and b) it is in her best interests that, in the event that her marriage to MA is a valid marriage, it be annulled or that there be a declaration that it is not recognised by the law of England and Wales. In the second, the local authority as substituted applicant seeks declarations that BB a) lacks the capacity to litigate, b) lacks capacity to decide where she should live, with whom she should have contact, who should provide her with care, what care should be provided to her and the medical treatment she should receive for her mental disorder. The court is asked to make decisions on her behalf as respects those questions which the court determines she is incapacitated to answer.' [Summary required.] 2011‑11‑09 21:20:31 2011 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript


Re GM; FP v GM and A Health Board [2011] EWHC 2778 (COP)This was an application for a DOLS standard authorisation to be discharged, thus permitting GM, on discharge from hospital, to return to his home rather than be sent to an EMI home. (1) For there to be an order preventing GM from returning home (in practice, permanently) it would have to be 'so contrary to his interests to return that the court must not even contemplate seriously a placement' at home. (2) Factors in favour of a return home included: the 'emotional dimension'; GM's short life expectancy, and the fact that a move to EMI accommodation would be permanent; and Article 8 considerations. (3) Factors against were: the probability of a lesser quality of physical care at home; the risk of risk of breakdown and conflict; and the risk of deterioration, for instance in sleep pattern. (4) The DOLS authorisation was discharged. (5) As GM was ready for discharge from hospital, and the decision would have permanent effect, Hedley J decided the issue in one day in January instead of waiting for a five-day hearing in May (before a DJ) or October (before a High Court judge). He commented that 'it seems to me that it is absolutely essential that the Court of Protection establishes a practice that these interim cases must be dealt with quickly, and, having regard to the demands on the system generally, proportionately, that is to say almost certainly without detailed oral evidence.' 2011‑10‑26 23:07:59 2011 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


A London Local Authority v JH [2011] EWHC 2420 (COP) — It was, in the interim, in JH's best interests to return home with a package of care (rather than go to a care home). [Summary to follow.] 2011‑10‑05 16:48:26 2011 cases, Best interests, Judgment available on Bailii, No summary, Transcript


LG v DK [2011] EWHC 2453 (COP) — Application to Court of Protection to decide whether it is in DK's best interests to provide DNA sample for paternity test. [Summary to follow.] 2011‑10‑05 16:43:00 2011 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Surrey County Council v MB [2007] EWHC 3085 (Fam) — MCA, MHA, deprivation of liberty. [Summary required.] 2011‑09‑29 19:46:42 2007 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re M; W v M [2011] EWHC 2443 (COP)M is in a minimally-conscious state (the three categories of disorders of consciousness being coma, vegetative state and minimally-conscious state); family members applied to court to argue that the withdrawal of artificial nutrition and hydration was in M's best interests. (1) The Official Solicitor's argument that withdrawal can never be in the best interests of a clinically-stable MCS patient was rejected in favour of the usual 'balance sheet' approach to best interests, although clinical stability is an important factor. (2) In analysing best interests, the judge considered (a) preservation of life, (b) M's past wishes and feelings, (c) pain, (d) enjoyment of life, (e) prospects of recovery, (f) dignity, and (g) wishes and feelings of family members and carers. (3) It was not in M's best interests for ANH to be withdrawn: the preservation of life was the decisive factor in this case. (4) The judge made the following observations for future cases: (a) a decision to withhold or withdraw ANH from a person in VS or MCS must be referred to the court; (b) no such application should be made unless the necessary assessments for MCS have been carried out; (c) non-means-tested Legal Aid should be available for family members in such applications; (d) consistent with privacy, it is imperative that the press should be free to report such cases. (5) A radical review of M's care plan will be the subject of further submissions; in the meantime, the do-not-resusitate order was continued and other treatment left to clinical discretion. 2011‑09‑28 17:12:24 2011 cases, Best interests, Brief summary, ICLR summary, Judgment available on Bailii, Transcript


WCC v GS [2011] EWHC 2244 (COP)(1) GS lacked capacity to conduct litigation, to make decisions in respect of her care requirements, to decide where she wants to live and to decide issues relating to contact with her family. (2) It was in GS's best interest to remain at a care home. (3) Having set out an general guidance in relation to conditions imposed on contact, the court approved an agreed contact schedule between GS and her son. 2011‑08‑22 20:44:45 2011 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Re DU; A NHS Trust v DU [2009] EWHC 3504 (Fam) — It was in DU’s best interests to be permitted to return to Nigeria subject to the making of practicable arrangements. [Official summary available.] 2011‑07‑31 21:39:08 2009 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


Cheshire West and Chester Council v P [2011] EWHC 1330 (COP)(1) The new care plan was in P's best interests (paras 35, 39). (2) There was a deprivation of liberty (reasons given in paras 58-60). (3) A costs order was made against the local authority as the serious misconduct of its employees (including misleading the court under oath, failure to disclose documents and falsifying records) rendered the proceedings more costly (para 76). (4) The public interest in holding public authorities accountable amounts to a 'good reason' for naming the local authority; the scale of the possible identification of P was minor enough not to prevent this (paras 89-90). 2011‑06‑19 22:41:50 2011 cases, Best interests, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript


Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP)(1) By keeping Stephen away from his home, Hillingdon breached Article 8 and Article 5(1) (notwithstanding DOLS authorisations granted during later stages). (2) By (a) failing sooner to refer the case to the COP, (b) failing sooner to appoint an IMCA, and (c) failing to conduct an effective review of the best interests assessments, Hillingdon breached Article 5(4). 2011‑06‑09 14:44:57 2011 cases, Best interests, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript


A Council v X [2010] EWHC B10 (COP)Direct contact between X, a 94 year old lady who lacked capacity due to advanced dementia, and her daughter Y was no longer in X's best interests. 2011‑05‑26 21:15:23 2011 cases, Best interests, Brief summary, Judgment missing from Bailii


Re A; A v A Local Authority [2011] EWHC 727 (COP)A, represented by the OS, appealed under MCA 2005 s21 against a DOLS standard authorisation; the other parties, including A's son, argued that A lacked capacity and that his current placement was in his best interests. The OS wanted an up-to-date assessment of capacity and a report on best interests, suggesting a COP Visitor report as being the proportionate method: the report would determine whether to dispose of the case by consent or seek further directions. Given the clear evidence, had it been a child best interests case there would have been summary judgment; however, the MCA laid down stringent conditions for deprivation of liberty, so the court cannot act as a rubber stamp and the OS must be allowed to carry out his duty of representing A as he thought fit. Having regard to the overriding objective, the COP Visitor method, and likely disposal without a further hearing, was the best way forward. 2011‑03‑29 22:00:03 2011 cases, Best interests, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript


Re P; A Local Authority v PB [2011] EWHC 502 (COP)(1) The judge's view was that in exercising a welfare or best interests jurisdiction (whether under the Children Act, under the inherent jurisdiction, or under the MCA) the court is choosing between available options; a point then arises whether the COP can add to the available options (by application of public law and HRA tests in the private law proceedings) or whether judicial review is necessary; these jurisdictional issues should be addressed well before a case comes on for final hearing, so that the relevant authority does not refuse to provide the services after the court has decided that they are in P's best interests; in this case there may be a further hearing to decide the issue. (2) At an appropriate stage in most COP welfare cases, a direction along the following lines should be given (paraphrased) - Each party shall serve a document on the other setting out (a) the facts he asks the court to find, the disputed facts he asserts the court need not determine, and the findings that he invites the court to find by reference to the former facts; (b) the investigations he has made of alternative care and thence the alternatives he asserts should be considered (and by whom the relevant services should be provided); (c) by reference to (a) and (b), the factors he asserts the court should take into account; (d) the relief sought and why he asserts the factors support the granting of that relief; (e) the relevant issues of law. (3) Procedural/substantive fairness did not require overnight contact at the mother's home before the final hearing, and this would not be in P's best interests 2011‑03‑29 21:24:38 2011 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


Re AH; AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 276 (COP)(1) The case concerned the proposal to move 12 adults from a specialist residential service (SRS) to alternative homes, and this judgment is a 'firm provisional decision' on one case in the hope of assisting resolution of all cases. (2) It was clearly not in AH's best interests to be moved: only the closure of SRS could justify the turmoil of a move. (3) This case illustrates the point that guideline policies (here, the campus closure programme) cannot be treated as universal solutions. 2011‑03‑29 20:20:03 2011 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Re AM; B (A Local Authority) v RM [2010] EWHC 3802 (Fam)(1) When considering whether to transfer an application for a care order (under the Children Act 1989) to the Court of Protection (to be dealt with under the MCA) the essential thrust is whether the young person's welfare will be better safeguarded within the Court of Protection. The court will take into account matters such as whether: (a) the child is over 16 (otherwise there is no power); (b) the child manifestly lacks capacity in respect of the principal Children Act decisions; (c) the incapacity is lifelong or at least long-term; (d) all decisions and issues about welfare can be resolved during minority; (e) the COP powers are more appropriate to resolve the issues; and (f) the welfare needs can be fully met using COP powers. (2) AM's welfare would be better protected within the COP because: (a) there should be a court determination about the placement; (b) the court door should remain open during planning the placement; (c) the judge was far from satisfied that the issues could be resolved during AM's minority; (d) her disabilities and acute care needs are lifelong; (e) COP declarations avoid the negative consequences of a care order but still set the framework within which AM's needs can be addressed; and (f) her lack of relevant capacity is manifest. (3) The case was transferred to the Court of Protection under article 3 Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007 on the judge's initiative, he reconstituted as the Court of Protection to avoid a separate hearing, and made various orders on capacity, best interests, and procedure. 2011‑03‑29 19:57:52 2010 cases, Best interests, Brief summary, Transcript


Re CW; A Primary Care Trust v CW [2010] EWHC 3448 (COP)(1) Medical treatment is of no benefit to a person in a persistent vegetative state because he is not sentient and has no prospect of recovery; whether the withdrawal of life-sustaining treatment measures is in P's best interests depends on whether the diagnosis of PVS is correct; if it is correct then the provision of any treatment is futile and cannot be in his best interests. (2) CW was in a persistent vegetative state with no prospect of recovery; it was in his best interests for artificial nutrition and hydration to be withheld, which could be done lawfully; it was in his best interests to receive treatment and nursing care to ensure that he retains the greatest dignity possible until death. 2011‑03‑02 17:44:09 2011 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 413 (COP)(1) The judge directed that: (a) the named media organisations could send designated representatives to court, subject to further directions; (b) the media could identify the parties by name, rather than initials; (c) the media could report any information already in the public domain when reporting the proceedings; (d) any application to report information during the course of any private hearing is to be determined by the court at the conclusion of the relevant hearing. (2) The reasons given were that: (a) the circumstances are already in the public domain to a significant extent; (b) there is no evidence of a real possibility of detriment or distress to Stephen of anything other than a trivial nature; (c) it would be impossible to prevent the media from reporting parties' names at the end of proceedings. (3) In relation to future care, directions had been given for a mediated solution to be attempted. (4) In relation to lawfulness of the past deprivation of liberty, a hearing was listed for May 2011. 2011‑03‑02 17:38:17 2011 cases, Best interests, Brief summary, Transcript


Re AVS; AVS v A NHS Foundation Trust [2011] EWCA Civ 7 — Court of Appeal refuse permission to appeal from Court of Protection decision in medical treatment case. [Official summary available.] 2011‑01‑17 21:05:58 2011 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


Re HM; PM v KH [2010] EWHC 3279 (Fam) — PM sentenced to 4 months' imprisonment for contempt of court. [Summary required.] 2011‑01‑06 20:07:06 2010 cases, Best interests, Judgment missing from Bailii, No summary, Transcript


Re HM; PM v KH [2010] EWHC 2107 (Fam) — Costs orders against PM. [Summary required.] 2011‑01‑06 20:05:42 2010 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re HM; PM v KH [2010] EWHC 871 (Fam) — Best interests case. [Transcript and summary required.] 2011‑01‑06 20:03:48 2010 cases, Best interests, Judgment missing from Bailii, No summary, No transcript


Re G (TJ) [2010] EWHC 3005 (COP)The court considered the meaning of 'best interests' when deciding whether or not to direct a deputy to make maintenance payments from P's funds to her daughter. (1) The balance sheet of facts which P would draw up if he had capacity to make the decision (taking into account actual wishes, beliefs and values, and other factors) is a relevant factor for the court's decision: thus a substituted judgment can be subsumed into the consideration of best interests. (2) 'Best interests' does not only include the self-interest of P: it includes wishes (or those he would have formed had he capacity) even if altruistic and not self-interested, and even if P has no awareness of the fact that such wishes are being respected. (3) On the facts: (a) no weight would be given to the possibility that P might be thought to have done the 'right thing', principally because she could not participate in the decision in any way, and partly because the family disagreed about what was the right thing; (b) overall, given the absence of any countervailing factors, respect for what would have been P's wishes defined what is in her best interests; (c) the order for maintenance payments was made. 2010‑11‑22 20:26:09 2010 cases, Best interests, Brief summary, Transcript


Re AVS; CS v A NHS Foundation Trust [2010] EWHC 2746 (COP)(1) AVS suffered from CJD and at a previous hearing it had been declared that he lacked capacity to instruct solicitors or make medical decisions. (2) The critical question was: 'is it in AVS's bests interests that PPS treatment continues to be administered to him?' The applicant wanted it to recommence; the Trust did not. (3) The applicant brother was not an appropriate next friend as the relationship between him and the clinicians had broken down completely and he lacked the necessary objectivity: the Official Solicitor would be invited to act. (4) The court's 'best interests' analysis embraces all the circumstances of the case, and clinical opinion is not necessarily determinative, but it is unlikely in the extreme that the court would order a clinician to undertake a medical intervention which the clinician did not believe to be in the best interests of the patient. (5) These proceedings would therefore be doomed to failure without a clinical opinion on the applicant's side. A doctor had been identified as willing to take over AVS's care and, it seemed, administration of PPS: proceedings would be dismissed after 14 days unless a report from Dr P were filed to answer the Trust's reports and identifying a proper issue for the court's determination. (6) Directions were given as to medical and non-medical witnesses, disclosure of medical records and evidence, instruction of experts and an experts' meeting. 2010‑11‑02 23:25:42 2010 cases, Best interests, Brief summary, Transcript


E v Channel Four [2005] EWHC 1144 (Fam) — In these proceedings the Official Solicitor, joined by St Helens Borough Council, seeks an interim injunction to restrain the broadcasting by Channel Four Television Corporation of a film and the publication by the Sunday Times of an article about E. She is a woman of 32, who they assert lacks the capacity to consent to what Channel Four and the Sunday Times are proposing. They invoke the inherent jurisdiction of the court. [Summary required.] 2010‑10‑29 18:25:07 2005 cases, Best interests, No summary, Transcript


Re SB (2010) COP 19/10/10(1) SB lacked capacity to consent to potentially life-saving treatment for aplastic anaemia. (2) It was lawful for the clinicians to administer the treatment and restrain her for that purpose; also, if the they decided that it was too distressing, they could decide to stop. [Summary based on press report.] 2010‑10‑20 23:10:37 2010 cases, Best interests, Brief summary, No transcript


Re SA; FA v Mr A [2010] EWCA Civ 1128 — Court of Protection case. [Summary to follow.] 2010‑10‑18 23:16:05 2010 cases, Best interests, Judgment missing from Bailii, No summary, Transcript


An NHS Foundation Trust v D [2010] EWHC 2535 (COP)(1) D lacked the capacity to decide on medical treatment for her prolapsed uterus, as she held the delusional belief that her condition was normal and did not require treatment. (2) It was in D's best interests to receive surgery, as if untreated her condition could be life-threatening. (3) The proposed restraint and deprivation of liberty (including a general aesthetic six days before the surgery) was authorised, if absolutely necessary, as being in her best interests. (Summary based on press articles.) 2010‑10‑05 23:09:07 2010 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


A Primary Care Trust v P (2009) EW Misc 10 (EWCOP)(1) P lacked capacity to decide where and with whom he should reside. (2) The removal of P from AH's care at home, as a manifest breach of Article 8, could only be proportionate if the best interests of P compellingly required it. (3) It was in P's best interests to be moved to independent living accommodation. (4) There would be a deprivation of liberty due to (a) the degree of control to be exercised by staff, (b) the constraint on P leaving if he intends to return to AH, (c) the power to refuse a request from AH for P's return, (d) the restraints on contact, (e) the fairly high degree of supervision and control. (5) Directions were given in relation to the conduct of further court reviews. (6) Contact would be dealt with separately in an Order. 2010‑09‑13 23:44:12 2009 cases, Best interests, Brief summary, Deprivation of liberty, Transcript


Re LD; London Borough of Havering v LD and KD [2010] EWHC 3876 (COP)(1) The practice of the Court to appoint personal wefare deputies only relatively rarely, in the most extreme cases, is the correct approach, considering the intention of s16(4). Specific decisions of the court are to be preferred to the ongoing appointment of a deputy and when a deputy must be appointed it is to be for the narrowest scope and the shortest time reasonably practicable in the circumstances. (2) The local authority's application to be appointed as LD's personal welfare deputy until further order was rejected: the case was not especially unusual or difficult; residence had recently been resolved by the court, and the other issues were either routine (and thus subject to s5) or very major (requiring court scrutiny); the absence of a deputy would not cause problematic delay in decision-making, as as court orders can be obtained very swiftly, and was not preventing care or services being provided; mere convenience to a local authority in avoiding future court applications is not relevant. 2010‑08‑21 13:48:39 2010 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


RT v LT [2010] EWHC 1910 (Fam)(1) Applying the MCA 2005 provisions, LT lacked capacity in relation to residence and what contact she should have with her family. (2) Wherever possible, the plain words of the Act should be directly applied to the facts of the case in hand, but there will be cases in which it may be necessary to look at pre- or even post-Act authority on the question of capacity. 2010‑07‑27 23:31:10 2010 cases, Best interests, Brief summary, Transcript


HBCC v LG [2010] EWHC 1527 (Fam)It was in the best interests of an elderly lady suffering from dementia to remain at a residential home, rather than be returned home to live with her daughter (who was assisted by a McKenzie Friend, whose role was the subject of consideration by the Court) 2010‑07‑21 11:24:31 2010 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


Re MB (Medical Treatment) [1997] EWCA Civ 3093 — "This appeal arose from the application by a health authority for a declaration from the High Court that it would be lawful for the consultant gynaecologist to operate upon a young woman, Miss MB, who was 40 weeks pregnant and admitted to hospital on Friday 14th February." [Summary required.] 2010‑07‑20 21:33:58 1997 cases, Best interests, No summary, Transcript


Re SA; A Local Authority v MA [2005] EWHC 2942 (Fam) — "This case raises novel questions about the court's inherent jurisdiction in relation to vulnerable adults. I have before me a vulnerable young woman who has just turned eighteen and has therefore attained her majority. While she was still a child the court had exercised its inherent parens patriae and wardship jurisdictions to protect her from the risk of an unsuitable arranged marriage. The question is whether I have jurisdiction to continue that protection now she is an adult." [Summary required.] 2010‑07‑20 21:32:14 2005 cases, Best interests, No summary, Transcript


Re HM; PM v KH [2008] EWHC 2824 (Fam)It was in the best interests of a young lady without capacity to determine questions of treatment, care and medical treatment to reside at a specialist placement rather than with her father. 2010‑07‑20 16:47:50 2008 cases, Best interests, Detailed summary, Judgment missing from Bailii, Transcript


Re HM; PM v KH [2009] EWHC 2685 (Fam) — Best interests case. [Transcript and summary required.] 2010‑07‑19 20:09:43 2009 cases, Best interests, Judgment missing from Bailii, No summary, No transcript


Re P [2010] EWHC 1592 (Fam)Derek Paravicini's parents and sister (rather than any independent person) were made joint and several financial and welfare deputies, subject to (1) a condition under s16(5) to consult fully with the RNIB and the county council when considering a move of accommodation; and (2) a requirement under s19(9) to give notice to the public guardian in the event that his earnings exceed £150,000 a year, as at this point he could begin to contribute to the costs of his care while making a profit from a musical career. 2010‑07‑18 01:26:07 2010 cases, Best interests, Brief summary, Transcript


Re HM; PM v KH [2010] EWHC 1579 (Fam)In this case PM had removed HM (an incapacitated adult) out of the jurisdiction following a best interests judgment with which he disagreed. This judgment discusses various orders which were made at a subsequent hearing. For orders, including in relation to anonymity/publicity, to be enforceable they must be drafted as injunctions and be clearly worded. The text of the orders is set out in an annex. 2010‑07‑12 19:48:06 2010 cases, Best interests, Brief summary, Transcript


A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam)(1) The test for capacity to make decisions as to contraceptive treatment should be applied so as to ascertain the woman's ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment ("the proximate medical issues"), including: (i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects of each and how they can be dealt with; (v) how easily each type can be changed; and (vi) the generally accepted effectiveness of each. (2) Questions do not need be asked as to the woman's understanding of what bringing up a child would be like in practice; nor any opinion attempted as to how she would be likely to get on; nor whether any child would be likely to be removed from her care. (3) Mrs A did understand the proximate medical issues. (4) However, her decision not to continue taking contraception was not the product of her own free will: she was unable to weigh up the pros and cons of contraception because of the coercive pressure under which she had been placed both intentionally and unconsciously by Mr A. (5) The judge made no order as to Mrs A's best interests, preferring that an attempt be made to achieve a capacitated decision from Mrs A, through 'ability-appropriate' help and discussion without undue contrary pressure from Mr A. (6) The court has a wide inherent jurisdiction to prevent conduct by the dominant party which coerces or unduly influences the vulnerable party from making free decisions, but on the facts no injunction against Mr A was necessary. 2010‑07‑08 22:09:09 2010 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript


DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam)(1) It was in PS's best interests to undergo a hysterectomy, and removal of the fallopian tubes and ovaries, in order to treat her endometrial cancer. (2) If, given her hospital and needle phobia, sedation or force were necessary to convey her to hospital, then that would be in her best interests. (3) It would be necessary to detain her in hospital for post-operative recovery; as it was in her best interests to have the operation, it was in her best interests to recover appropriately from it. In the circumstances, the court authorised the deprivation of liberty and it was unnecessary to invoke the DOL Safeguards. 2010‑05‑26 23:01:42 2010 cases, Best interests, Brief summary, Transcript


City of Westminster v FS (2009) COP 11685959Successful appeal by Official Solicitor against rejection of application to instruct independent social worker. 2010‑05‑11 22:05:21 2009 cases, Best interests, Brief summary, Transcript


Re HM; PM v KH [2010] EWHC 870 (Fam)The case involved the abduction of P by his father to Israel in contravention of a best interests declaration. The judgment describes the various orders which were made to secure the return of P. Discussion of court's powers in relation to adults lacking capacity. The court has exactly the same powers when it is concerned to locate the whereabouts of a missing or abducted adult lacking capacity as when concerned to locate the whereabouts of a missing or abducted child. 2010‑05‑11 21:48:31 2010 cases, Best interests, Detailed summary, Transcript


M v B [2005] EWHC 1681 (Fam) — Injunction granted to prevent P being taken to Pakistan for arranged marriage. [Summary required.] 2010‑05‑01 23:31:38 2005 cases, Best interests, No summary, Transcript


LB Enfield v SA [2010] EWHC 196 (Admin)(1) Hearsay evidence is admissible in the Court of Protection. (2) This includes hearsay from a witness who is incompetent by reason of mental disability; however, this lack of competence is an important factor when evaluating the weight to be attached to the evidence. (3) Where P has been interviewed by police in an ABE interview, the DVD should be disclosed to the parties: in general, it would be justified for the Court of Protection to make a "specific disclosure" order under r133(3) requiring "full and frank disclosure" of all relevant material. (4) Where there are extant COP proceedings then, in the absence of an absolutely pressing emergency, any question of interviewing P must be subject to a direction of the judge; initially it may be raised without notice to a party about whom allegations relate, but P's litigation friend should always be given notice. (5) Once findings of fact have been made the case is part heard and the trial should not resume before a different judge. 2010‑04‑15 20:50:12 2010 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


SSNI, Re Judicial Review (Oswald Brown) [2006] NIQB 94It was lawful for the hunger-striking prisoner, who lacked capacity, to be given nutrition. 2010‑01‑12 19:35:45 2006 cases, Best interests, Brief summary, Northern Irish cases, Transcript


Re Allen (2009) COP 21/7/09Under MCA 2005 s4(7) any best interests decision-maker "must take into account, if it is practicable and appropriate to consult them, the views of" various categories of individuals. Where any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P’s best interests, and it would be neither practicable nor appropriate to embark on that process in the first place. 2009‑12‑14 20:31:21 2009 cases, Best interests, Detailed summary, No transcript


Law Hospital NHS Trust v Lord Advocate (1996) ScotCS CSIH 2 — "The purpose of these proceedings is to obtain the sanction of the court to the termination of nutrition and hydration and all other life sustaining treatment to a patient at Law Hospital." [Summary required.] 2009‑11‑30 23:05:58 1996 cases, Best interests, No summary, Scottish cases, Transcript


Re RB (A Child) [2009] EWHC 3269 (Fam)Transcript of judge's sentencing remarks, endorsing the parties' agreement that administration of a large dose of sedative, the removal of the ventilation tube and consequent death (rather than discharge from hospital on home ventilation after a tracheostomy) were in the baby's best interests. 2009‑11‑16 22:06:02 2009 cases, Best interests, Brief summary, Transcript


NHS Hospital Trust v A (a child) [2007] EWHC 1696 (Fam)Bone marrow transplant on baby lawful despite parents' refusal to consent. 2009‑10‑29 22:33:09 2007 cases, Best interests, Brief summary, Transcript


KD and LD v LB Havering (2009) EW Misc 7 (EWCOP)At a hearing which was expected to be merely interlocutory, the DJ made final orders as to capacity and residence, and appointed the local authority as personal welfare deputy. (1) The power to deal with cases summarily exists but was exercised unlawfully in this case. It is to be exercised as an alternative to a hearing, for example in an emergency or where little or no contest is anticipated. It is unlikely to be exercised appropriately where there is a serious issue or potential issue as to the appropriateness of deprivation of liberty and so where Articles 5 and 6 are potentially engaged. The DJ had achieved an impermissible hybrid, in the course of a hearing exercising powers potentially available to the Court instead of a hearing. (2) A summary decision of best interests must be made by reference to the evidence and the matters in MCA 2005 s4, but this exercise was not fully carried out. (3) There was a breach of procedural fairness and Article 6, and arguably Article 8, in that P's mother was not in court to provide instructions and there was a distinct possibility that she lacked litigation capacity. Considering the difficulties involved, including delay, it was no answer to allow the mother to bring parallel proceedings by way of an application to vary. (4) It was procedurally unfair to to proceed without awaiting the OS's instructions. (5) The judge was minded to consider that the outstanding expert report was no longer appropriate, but it was a wrongful exercise of discretion and procedurally unfair not to allow representations as to why nonetheless it was appropriate to wait. (6) It was wrong to make such a sweeping order delegating unfettered future management power, without the necessary review procedures; it was particularly wrong to do so without warning to or hearing from the parties, which in the mother's case was a disproportionate breach of Article 8. (7) The personal welfare deputy was appointed without a proper examination of the statutory and procedural requirements, in breach of the procedural rights of the mother as they then appeared; it was also unsatisfactory that instructions from the OS were not awaited. 2009‑10‑29 20:34:57 2009 cases, Best interests, Detailed summary, Transcript


Bury Metropolitan Borough Council v D [2009] EWHC 446 (Fam)It was lawful for the local authority to remove a child from its mother immediately at birth without informing the mother of its intentions. 2009‑10‑08 18:51:17 2009 cases, Best interests, Detailed summary, Transcript


Re GC [2008] EWHC 3402 (Fam)(1) The principle governing State intervention under the Mental Capacity Act 2005 is the same as under the Children Act 1989, namely that the State does not interfere in the private family life of an individual unless the continuance of that private family life is clearly inconsistent with the welfare of the person whose best interests the court is required to determine. (2) The closer the person is to having capacity the more weight his views are to be given. (3) Contrary to the professional evidence, it was in GC's best interests to return home as an interim measure: this decision was reached having regard to (a) the concept of least intervention, (b) GC's consistently-expressed wishes and feelings, (c) a finding that a trial at home was necessary and now was the best time, and (d) the importance of the emotional, as opposed to physical, component of best interests to very elderly (or young) people. 2009‑08‑15 21:13:49 2008 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


Re OT [2009] EWHC 633 (Fam)OT, a nine-month-old baby, required continuous ventilation to live, and sometimes required further intensive medical treatment; the trust wanted to discontinue ventilation and treatment on the basis of the distressing and futile nature of the treatment; the parents wanted all steps to be taken to sustain life. (1) Although the application itself was made in an emergency as a result of a sudden deterioration in the child's condition, the parents had a fair opportunity to prepare their case both before and during the hearing; there was therefore no flaw in the process breaching Convention rights. (2) The provision or withdrawal of treatment for a child without parental consent, save in exceptional cases, is unlawful without a court declaration.* (3) Declarations were made permitting the clinicians to treat OT according to their clinical discretion (including not escalating treatment) and to cease ventilation immediately. 2009‑05‑21 22:42:02 2009 cases, Best interests, Brief summary, Judgment missing from Bailii, Transcript


Re OT (A Child) [2009] EWCA Civ 409The judge's refusal of the parents' adjournment application, and the decision to proceed with a determination of best interests of their child, was not appealable. 2009‑05‑18 22:50:33 2009 cases, Best interests, Brief summary, Transcript


NHS Trust v T [2004] EWHC 1279 (Fam)The patient lacked capacity, based on medical opinion and the content of her advance directive refusing treatment; interim declaration made that blood transfusion in emergency would be in patient's best interests. 2009‑04‑12 22:24:41 2004 cases, Best interests, Brief summary, Transcript


R (Burke) v General Medical Council [2005] EWCA Civ 1003 — Artificial nutrition and hydration. 2009‑04‑12 21:57:46 2005 cases, Best interests, No summary, Transcript


R (Burke) v General Medical Council [2004] EWHC 1879 (Admin) — Artificial nutrition and hydration. 2009‑04‑12 21:57:43 2004 cases, Best interests, No summary, Transcript


Re F (Adult Patient) [2000] EWCA Civ 3029 — Court's jurisdiction. 2009‑04‑12 00:26:37 2000 cases, Best interests, No summary, Transcript


Re S and S (Protected Persons); C v V [2008] EWHC B16 (Fam)(1) Under the Mental Capacity Act 2005, there is a presumption in favour of implementing P's wishes unless they are irrational, impractical, or irresponsible (with reference to resources), or there is a sufficiently countervailing consideration. (2) The appointment of donees jointly (rather than jointly and severally) under a power of attorney created the presumption that the donors wanted decisions made jointly or by neither appointee. (3) Mr and Mrs S's wishes (that if both daughters were unable to act jointly then neither should act singly) would be implemented, and an independent Deputy would be appointed. 2009‑02‑22 14:14:41 2008 cases, Best interests, Detailed summary, Transcript


St Helens Borough Council v PE [2006] EWHC 3460 (Fam)In cases involving the doctrine of necessity a declaration in the form of "it is lawful, being in [PE's] best interests..." is appropriate, as it is the best interests of the vulnerable adult which determine lawfulness; however, in other circumstances under the inherent jurisdiction a bare declaration in the form of "it is in [PE's] best interests..." is appropriate. 2009‑01‑17 14:04:51 2006 cases, Best interests, Brief summary, Transcript


A v A Health Authority [2002] EWHC 18 (Fam)The nature of the case determined the court in which a case concerning the welfare of children or incompetent adults should be litigated: the review of a decision of a public authority by way of JR in the Admin Court; best interests cases in the Family Division. In best interests proceedings the court cannot compel a public authority to exercise its public law functions in a certain way. 2008‑12‑30 22:08:33 2002 cases, Best interests, Detailed summary, Judgment missing from Bailii, Transcript


Re A (Medical Treatment: Male Sterilisation) [2000] 1 FLR 549, (2000) 1 FCR 193It would not be in the best interests of A, who lacked capacity to make the decision, to be sterilised, while the current level of supervision continued; best interests are not limited to best medical interests but encompass medical, emotional and all other welfare issues. 2008‑12‑30 20:30:38 2000 cases, Best interests, Detailed summary, Transcript


Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254(1) The operation to separate Siamese twins, both of whom would otherwise shortly die, would clearly be in Jodie's best interests, but would kill Mary; the court must perform a balancing exercise in determining what was in the twins' best interests, regardless of the parents' religious objections; the scales come down heavily in Jodie's favour. (2) The operation would be lawful in criminal law, under the doctrine of necessity, and as the primary purpose was not to kill Mary 2008‑12‑30 19:19:33 2000 cases, Best interests, Detailed summary, Transcript


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