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Court of Protection Blog

Our Court of Protection solicitors egularly write about related legal topics and breaking news, we welcome your comments on our posts. If you would like more information on our services, please don't hesitate to get in touch on 01616 966 229.

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Should a professional deputy tell P about their damages award?

Sophie Holmes
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In a recently published judgment, the Court of Protection considered the question of how a property and affairs deputy should approach the issue of whether to inform P of the value of their civil litigation settlement. PSG TC Ltd v CK & Anor [2024]...

Case law update - an NHS Trust application to authorise surgery to P's shoulder in his best interests

Sophie Holmes
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The recently published Manchester University NHS FT v Y [2023] EWCOP 51 judgment concerned an application to determine whether Y had capacity to consent to surgery to his shoulder and, if he lacked capacity, whether the proposed surgery was in his best...

A vicissitude of life - death and dying in the Supreme Court

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Judgment in Paul and another v Royal Wolverhampton NHS Trust [2024] UKSC 1 was handed-down by the Supreme Court (‘the court’) on 11 January 2024, marking its first judgment of the year. The issue before the court was whether an individual...

Care home and hospital visiting - the new regulations

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The Department for Health and Social Care (‘DHSC’) has laid before Parliament the Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2023 (‘the regulations’) regarding visiting in care homes and hospitals...

Human Rights and Mental Capacity - an interplay in the Court of Protection

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Re BNK (Dental Treatment) [2023] EWCOP 56 provided a restatement of the interaction between the Mental Capacity Act 2005 ('MCA') and the European Convention on Human Rights (‘the convention’). Factually, it concerned dental treatment...

Palliative care in the Court of Protection - weighing the options

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Judgment in The NHS Foundation Trust v K [2023] EWCOP 57 was handed-down on 14 th December 2023. It concerned an application by a hospital trust (‘the trust’) for declarations with respect to treatment for K, a young person who was an...

Mental capacity and best interests in pregnancy termination

Katie Byrne
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The central issues in the recent Court of Protection case of Re H (An Adult; Termination)  [2023] EWCOP 183 [1] ) concerned Ms H's capacity to decide to terminate her pregnancy and if she did lack capacity, whether a termination was in her ...

Adult social care - hospital discharge figures

Sophie Holmes
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Stats revealed by the BBC recently suggest that fewer than 1 in 10 patients in North West hospitals who are medically fit for discharge are actually able to leave due to a lack of beds in other settings. Research found that the North West was the worst...

Specialist Court of Protection solicitors

Sophie Maloney
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At Stephensons our specialist  Court of Protection solicitors  deal with all contentious health and welfare related cases including disputes surrounding mental capacity and best interests as well as disputed property and affairs matters. Mental...

The role of a property and affairs deputy

Paige Richards
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Being a property and affairs deputy is an important responsibility, you must ensure that you are acting in the client’s best interest. When establishing whether you are acting in the client’s best interest, you need to ensure the decisions...

An end-of-life decision in the Court of Protection

Sophie Maloney
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Northern Care Alliance NHS Foundation Trust v KT & Ors [2023] EWCOP 46 (25 August 2023) “…there comes a point where the laudable aspiration to prolong life is overtaken by the equally strong moral imperative not to protract death. Where...

A Court of Protection application to authorise a planned caesarean section

Sophie Holmes
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The recently published North Middlesex University Hospital NHS Trust & Anor v MB [2023] EWCOP 23 concerned a 26-year-old woman, ‘MB’ who was 37 weeks pregnant and shortly due to give birth to her first child. MB was detained in hospital...

Best interests - who decides? Making decisions for adults who lack mental capacity

Sophie Holmes
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A new BBC drama ‘Best Interests’ aired recently, highlighting the difficulties that can be faced when a best interests dispute occurs and attracting debate as to who should have the final say in such decisions. Sophie Holmes, solicitor in...

Carers Week 2023 - what can solicitors assist carers with?

Jessica Hobro
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This year, Carers Week, is taking place from 5th to 11th June. Carers Week is an annual campaign to raise awareness of caring, to highlight the challenges unpaid carers face and recognise the contribution they make to families and communities throughout...

Challenging local authority decisions - what can I do if I disagree with my loved one's care home placement?

Sophie Maloney
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When a local authority determines that a care home placement is necessary for a loved one, but you disagree with the decision, it can be an incredibly distressing and challenging situation. However, it is important to remember that you have rights and...

The role of a graduate paralegal in the Court of Protection team

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I started my role as a graduate paralegal at Stephensons on 16 January 2023, it is my first legal job and my first step into a (hopefully) long legal career. Not only was the job new to me, but the area of law itself was something I had very little...

Is home a suitable option for residence and care for a vulnerable adult if their family refuses access to support?

Sophie Holmes
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The case of A Local Authority v MF & Ors [2022] EWCOP 54 , which was recently published on the National Archive, concerned a 40-year-old man ‘M’ with a diagnosis of moderate learning disability and schizoaffective disorder. An application...

What are deprivation of liberty safeguarding restrictions in social care?

Sophie Holmes
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The Mental Capacity Act 2005 is the legal framework which allows decisions to be made on behalf of people who lack the mental capacity to make the decision themselves, including decisions to deprive a person ‘P’ of his or her liberty.  ...

How long can a deprivation of liberty authorisation be in place?

Jessica Hobro
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DOLS (deprivation of liberty safeguards) are used to deprive a person of their liberty if they are in a hospital, care home or nursing home. This is because the nature of their care arrangements mean that their freedom needs to be restricted (for example,...

What should I do if I think someone is being deprived of their liberty?

Megan Taylor
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If you think that someone is being deprived of their liberty, you should talk to the people in charge of their care. In a care or nursing home, this would be the home manager, and in a hospital, this may be a doctor or nurse (often referred to as the...

Weighing best interests in the Court of Protection - A return home for 'P' vs a risk of serious health issues

Sophie Holmes
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The recent case of Lancashire and South Cumbria NHS FT and Lancashire CC v AH [2023] EWCOP 1 concerned a 46-year-old woman (‘AH’) with a diagnosis of type one diabetes, mild learning disability and suspected borderline personality...

Why would a DoLS be put in place?

Megan Taylor
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The term “DoLS” (Deprivation of Liberty Safeguards) is often viewed as a negative and draconian concept, as the person being deprived of their liberty is having their freedoms restricted, impacting their right to liberty under Article 5 of the...

What is a deprivation of liberty in social care?

Sophie Holmes
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A deprivation of liberty occurs when a person (P) has their personal freedom restricted. This could be because of their care package, to meet their care needs and keep them safe (for example in a locked care home). Article 5 of the European Convention...

What are deprivation of liberty safeguards assessments in care homes and hospitals?

Jessica Hobro
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Deprivation of liberty  safeguards (DOLS) are used to deprive a person of their liberty if they are in a hospital, care home or nursing home. The DOLS assessment makes sure that the care being given to a person who lacks capacity is in their best...

New guidance on the streamlined procedure for the deprivation of liberty of 16 and 17 year olds

Sophie Maloney
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In the case of Bolton Council v KL [2022] EWCOP 24   Her Honour Judge Hilder provided guidance on when the streamlined procedure to authorise a deprivation of liberty may not be appropriate. The streamlined procedure enables the Court of...

Free training sessions for advocates - Court of Protection

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Stephensons’ specialist Court of Protection and community care team are available to deliver training either at your premises, at our offices in Wigan, or virtually over Microsoft Teams. Examples of topics we can cover with you include: ...

The "magnetic" factor - family contact vs the need for consistent communication with care home staff and other residents

Megan Taylor
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The recent case of K v N Council [2022] MHLO1 (COP) concerned the residence and care arrangements of a Polish National, ‘K’.  K is an 89-year-old lady who has a diagnosis of dementia and schizophrenia. She is also registered deaf and...

Anorexia and the refusal of clinically assisted nutrition and hydration - a case law example

Sophie Holmes
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The recent case of A Mental Health Trust v BG [2022] EWCOP 26 concerned a 19-year-old woman (BG) with a primary diagnosis of anorexia nervosa, and the decision to withdraw clinically assisted nutrition and hydration (CANH). From an early age, BG had...

Capacity to decide to engage in sexual relations - a case law example

Jessica Hobro
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The recent case of Hull City Council v KF [2022] EWCOP 33 concerned KF, a 34-year-old woman with a condition of agenesis of the corpus callosum which causes her to have a moderate learning disability. KF’s condition has an impact on her capacity to...

CQC fines NHS Trust for failures around consent

Sophie Maloney
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The Care Quality Commission (CQC) has recently issued two fixed penalty notices to University Hospitals Birmingham NHS Foundation Trust totalling £8,000. Their investigation relates to the failure to seek consent to care for and treat a patient in...

Court Of Protection case study - National Schizophrenia Awareness Day

Amy Dutton
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It is National Schizophrenia Awareness Day on 25th July 2022. National Schizophrenia Awareness Day is hosted by the charity Rethink Mental Illness and aims to illustrate the challenges faced by people living with a diagnosis of schizophrenia in the UK....

Case law - the covid-19 vaccination and best interests

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North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) [2022] EWCOP) This recent Court of Protection case concerned E, a man in his mid-60s with a diagnosis of moderate to severe learning disability. North Yorkshire CCG applied to the...

Capacity, consent and sexual relations in the Court of Protection

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The case of A Local Authority v JB (by his litigation friend, the Official Solicitor) [2021] UKSC 52, concerned JB a 38-year-old man with a diagnosis of autistic spectrum disorder with impaired cognition, who wanted to pursue his desire to have...

Covert medication and deprivation of liberty

Megan Taylor
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Covert medications are medications that are administered to a person without his/her knowledge or consent, often in a disguised form, such as food or drink. Following the NICE guidelines, if there are concerns about the person’s ability to give...

Termination of pregnancy and the Court of Protection

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The recent case of S v Birmingham Women’s and Children’s NHS Trust [2022] EWCOP 10 concerned 38-year-old S, who had a diagnosis of bipolar affective disorder. On 28 th  February 2022, at the time of these very urgent proceedings, S was...

Judicial visits to protected parties in Court of Protection proceedings - new guidance from February 2022

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It may seem surprising to those not familiar with health and welfare cases in the Court of Protection, but it is common for judges to visit the person lacking mental capacity at the centre of the case (P) in order to seek their wishes and feelings about...

Mental Health Awareness Week 2021 - commentary from our Court of Protection team

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This year, Mental Health Awareness Week runs from 10 – 16 May and the chosen theme this year is nature. During the long months of the pandemic, many of us experienced mental health problems, watched a loved one struggle, or just been generally...

Contact with relatives in care homes - new guidance from May 2021

Sophie Maloney
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Throughout the pandemic, concerns about the inability to visit and speak with family members in care homes have been widely reported, with different care providers taking different approaches. As we are navigating the government’s...

Contact with relatives in care homes during third national lockdown

Sophie Maloney
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Throughout the pandemic, concerns about the inability to visit and speak with their family members in care homes have been widely reported, with different care providers taking different approaches to facilitating contact. Now that we are in what is...

Department of Health & Social Care updated guidance during COVID-19 pandemic

Amy Dutton
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The Department of Health & Social Care has very recently published additional guidance concerning the Mental Capacity Act 2005 and deprivation of liberty safeguards (DoLS) during the COVID-19 pandemic. Best interests decisions The update on 7...

Liberty Protection Safeguard Scheme - implementation delayed until 2022

Amy Dutton
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The Liberty Protection Safeguards (LPS), designed to replace the Deprivation of Liberty Safeguards (DoLS), were due to be implemented later this year in October 2020. However following a recent government announcement, the LPS Scheme has now been delayed...

Court of Protection decides that man with irreversible stoma has the right to choose to die

Sophie Maloney
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On the 29 May 2020, Mr Justice Hayden received an urgent application (made out of business hours) by Barnsley NHS Foundation Trust. The application related to a 34 year old man with a history of complicated and painful abdominal problems dating back 10...

Court of Protection case highlights the need for mental capacity assessments on an issue specific basis

Sophie Maloney
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In a recent case, the Vice President of the Court of Protection, Hayden J, reminded us of the importance of the presumption of capacity and the requirement for proper assessment of mental capacity on an issue-specific basis. Everyone is assumed to have...

Applications made under the Mental Capacity Act increased in 2019

Sophie Maloney
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The third quarter of 2019 (July-September) saw a record number of applications made under the Mental Capacity Act according to a recent update on family court statistics. A total of 9,407 applications were made under the act during this period which...

Mental capacity and the ability to make decisions about the termination of a pregnancy

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In the recent landmark Court of Protection case of AB (termination of pregnancy), Re [2019] EWCA Civ 1215, the Court of Appeal had to decide whether it would be in the best interests of AB, a learning disabled woman, to provide the consent necessary in...

Mental capacity and the use of the internet and social media

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In the recent Court of Protection case of Re: A [2019] 3WLR 59, Cobb J outlines the relevant and irrelevant information for the purposes of deciding whether a person has capacity to make decisions about internet and social media use. The...

Mental capacity and the management of diabetes - a macro or micro decision?

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In the recent Court of Protection case of Royal Borough of Greenwich v CDM [2019] EWCOP 32, the court had to decide whether the assessment of capacity to make decisions about diabetic management should be one global macro-decision, embodying all of the...

Communication technology can enable a person's wishes and feelings to be sought in the absence of speech

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A remarkable case heard by Lord Justice Hayden sitting at the Court of Protection in London has highlighted the importance of going the extra mile to establish a person’s wishes and feelings, even in circumstances where a person may not be able to...

Judge rules that it is in P's best interests to receive medical treatment despite submissions from an NHS trust

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The case of University Hospitals Birmingham NHSFT v HB [2018] EWCOP 39 concerns an application made by the trust to rule out further treatment if a patient’s condition were to deteriorate. The protected party in this case is “P”, a...

Obtaining evidence of mental capacity in Court of Protection proceedings

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The Court of Protection is able to make decisions on behalf of a person who lacks capacity and so, one of the first things the court must consider in proceedings is whether or not the person in question has capacity or not. At the point of the case...

Inherent jurisdiction to authorise deprivation of liberty of adult with capacity

Megan Taylor
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In the recently reported case of A Local Authority v BF [2018] EWCA Civ 2962, the court ruled that in an emergency situation, someone may be deprived of their liberty in the absence of evidence of mental disorder without infringing their human rights. ...

A medical experiment or life saving treatment?

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In the recently reported case of University College London Hospitals v KG [2018] EWCOP 29, the court ruled that it was in the best interests of a person lacking capacity to receive a medical treatment that has never been tested on or administered to any...

Case highlights tragic handling of P's repatriation to Colombia

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The recent reported case of  London Borough of Lambeth v MCS & Anor [2018] EWCOP 14 and [2018] EWCOP 20 highlights the tragic handling of a vulnerable adult’s repatriation to Colombia. The 55-year old Colombian woman, referred to as...

Case highlights importance of protecting the rights of individuals who lack capacity

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In the recent reported case of Z [2018] EWHC 1488 (Ch) the protected party is Z, a successful businessman who carried out business ventures with his brothers. The applicant is the son of one of Z’s brothers who is now deceased. In this procedural...

Court of Protection protects teenage boy from his own 'impulsivity'

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In the case of Buckinghamshire County Council and RT (by their guardian KT ) [2018] EWCOP 12, the Court of Protection has ruled that a 17 year old boy be deprived of his liberty at a specialist unit in order to protect him from his own ...

The Court of Appeal prevents the identification of a protected party at the centre of Court of Protection proceedings

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The Court of Appeal have upheld a ruling made by the Court of Protection refusing to allow journalists to identify a protected party at the centre of proceedings. The case concerned RW, a 77 year old man with a diagnosis of end stage dementia. RW is...

Secretary of State seeks guidance from the Court of Protection - Skripal case

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It is said that the Court of Protection creates a level playing field between the powerful and the powerless. The majority of the cases decided by the Court of Protection relate to people whom are never identified beyond a set of initials to ensure...