Category Archive: Court of Protections

Applications to the Court of Protection for Authority to Purchase and Sell Property

A Deputy appointed to manage a person’s (P’s) property and financial affairs can act only within the specific authority granted by the Court of Protection Order.

This means that should an instance arise in which a Deputy is required to sell or purchase property on behalf of P, they must ensure that they have authority to do so before proceeding.

Authority to purchase and sell property on behalf of P may be included in the Order appointing the Deputy. However, if it is not then the Deputy must seek the appropriate authority from the Court of Protection before acting on P’s behalf.

Purchasing Property:

Circumstances in which a Deputy might be required to purchase property on behalf of P may arise where P has received settlement funds from a personal injury claim and wishes to use these funds to purchase a property. Similarly, there may be instances in which P’s current residence is unsuitable and alternative accommodation is required. Whatever the circumstances, it is important that the Deputy has the authority from the Court of Protection.

If the Order appointing the Deputy doesn’t include authority to purchase a property, then it will be necessary to apply to the Court for permission. An application to the Court of Protection to purchase property must explain the reasons why the Deputy requires such authority and should detail exactly how the purchase of a property will benefit P.

For example, it may be that P’s current accommodation is rented and is wholly unsuitable to meet P’s needs. Where possible, a Deputy should provide evidence of such unsuitability to the Court. In addition, the Deputy should set out the costs associated and satisfy the Court that a property purchase is affordable and in P’s best interests.

A suitable property does not need to be identified for P before the application is made. It would be prudent of the Deputy to submit an application to the Court of Protection as soon as it is established that a property will need to be purchased for P in the future. If authority has not been sought prior to a suitable property being identified for P, the Deputy runs the risk of P losing the property to another potential buyer. In these circumstances the Deputy can make an urgent application to the Court of Protection. However, it is at the Court’s discretion to determine whether the matter is urgent or not.

If the Court approves the application to purchase property, an Order will be issued confirming that the Deputy has authority to purchase property on behalf of P. Upon completion of the purchase, the Deputy must enter a restriction to HM Land Registry that no disposition of the registered estate made during P’s lifetime shall be completed by the registration without the authority of the Court of Protection.

The Deputy should also update the Office of the Public Guardian and provide copies of the title documents. Should P move into the property straightaway, all relevant parties will need to be notified of a change of address.

Selling Property:

Where a Deputy has the authority to purchase property on P’s behalf, it should not be assumed that they also have the authority to sell property.

Where property is jointly owned, the owners are referred to as the trustees of that property.

In circumstances in which an individual who lacks capacity owns property and a Deputy is in place, an important consideration for the Deputy is how to deal with that property.

Section 20(3)(c) Mental Capacity Act 2005 restricts Deputies from carrying out trustee functions. This means that if property is jointly owned and one of the owners has lost capacity, the Deputy must make an application to the Court of Protection under S.36(9) Trustee Act 1925 to seek permission to appoint a trustee in place of the incapable person before the property can be sold.

This application to the Court should set out evidence of why the sale should go ahead and what will happen to P’s share of the proceeds of the sale. Only once a new trustee has been appointed in place of P can the sale go ahead.

The Court of Protection has recently issued guidance for Deputies who intend to sell P’s property when P is in a care home. Before agreeing to allow the sale of P’s property, the Court of Protection must be satisfied that the correct DOLS authorisation is in place. As such, copies of best interest decisions and standard authorisations from the Local Authority should form part of the Deputy’s application to the Court.

Can Property be Gifted?

Similar, to selling or purchasing property, a Deputy must ensure that they have authority from the Court of Protection before gifting a property owned by P.

If an application to the Court of Protection is necessary, a Deputy must provide capacity evidence which specifically relates to the decision in question. Here, that question would be, whether P has the requisite capacity to make a gift.

Alongside capacity evidence, the Deputy must provide evidence that the gift is:

  • Affordable
  • Reasonable
  • Proportionate to the size of P’s estate

It is also important that P is involved in the decision-making process where possible. P’s best interests must always be at the heart of any decision-making.

There are a number of circumstances where gifting property may not be suitable. For example, there may come a time where P’s Deputy is required to sell P’s property to ensure care fees can be met. If P’s property is gifted to another, P may later struggle to fund their care. In this scenario, should P then apply for funding from the Local Authority to help with their care fees, P could be deemed to have deprived themselves of capital or assets (the property), in which case they will not receive financial support from the Local Authority, leaving P in a very vulnerable financial position.

Substantial gifts should always be approached with caution and considered thoroughly before proceeding with an application to the Court of Protection for approval.

Decision making in relation to all of the above should always be recorded by the Deputy and submitted to the Office of the Public Guardian as part of their yearly Deputy Report.

If you would like further information or advice regarding the Court of Protection or assistance with an application, please do not hesitate to contact Caitlin Edwards on 0191 226 3749. Alternatively, you can contact any other member of our Court of Protection team on 0191 226 7878.

Meet the Wills, Trusts & Estates Team with Caitlin Edwards

What is your role in the Wills, Trusts & Estates team and how long have you been at Sintons?

I am a paralegal and joined the firm in October 2021.

Tell us about your career to date…

I graduated from Durham University with a law degree in 2021 and joined the firm shortly after. There are quite a few lawyers in my family so I’ve always been attracted to a legal career – in fact, my Uncle Paul very kindly gave me my first ever work experience aged 16 and has provided me with lots of advice and wisdom since – I owe a lot to him. Prior to joining the firm I worked part-time as a customer assistant at Boots.

What attracted you to join Sintons?

Sintons has an excellent reputation as one of the leading law firms in the North East so naturally this attracted me to the firm. I also knew that the quality of work I would be exposed to would be unrivalled.

What does your role involve?

I work in the Court of Protection team and help manage the day-to-day affairs of our clients who lack the capacity to manage their property and financial affairs. My role within the team is incredibly varied and involves anything from drafting applications to the Court to overseeing building and adaptation works to our clients’ homes.

I work closely with the firm’s Neurotrauma team on catastrophic injury cases. I am also a member of the firms CSR committee and work alongside other members of the committee to raise awareness and money for our charity of the year, which this year is The People’s Kitchen.

What have been your personal highlights to date?

I am currently assisting one of my clients in planning their wedding. It is a privilege to be involved in such a milestone event.

I have also been lucky enough to have been invited to various events, such as the WonderLAN Ball!

The award-winning Wills, Trusts & Estates team is one of the most highly-rated in the North of England. What are the advantages of being part of it?

The people! I have the best colleagues I could possibly ask for. Entering the legal profession straight out of university was incredibly nerve wracking but immediately I was welcomed into the team with open arms.

My supervisors, Sophie Moore and Paul Collingwood, are fantastic and have supported me in managing my own case load and ensuring that my work is as varied as possible. I have learnt so much in the short time I have been with the firm.

How does Sintons differ from other firms you have worked in?

Every person in the firm genuinely wants to see you succeed and progress and will help you in any way they can. Everybody is genuinely so friendly which creates an excellent working environment.

What are your interests outside of work?

I am a member of a local cheerleading team and also volunteer with Smart Works Newcastle, which is a fantastic charity that supports women into employment in the North East. I have just moved into my first home so currently my main hobbies involve lots of DIY!

Court of Protection Conference brings together leading experts

An event to explore the support available for children with acquired brain injury (ABI) is set to attract attendees from across the country.

The Court of Protection Conference 2022 features an array of leading speakers who will discuss all aspects of child brain injury and its impact, covering the process from the effects on the family through to litigation, the support available and the return to education.

The online event, organised by Sintons Court of Protection team with the Child Brain Injury Trust, is expected to attract attendees nationally.

The conference, held via Zoom, will be held on February 10 from 9.30am to 2pm.

Speakers at the event are:

“Child brain injury is one of the most traumatic events imaginable and creates uncertainty and great distress for the whole family,” says Sophie Moore, chair of the conference and solicitor in the Court of Protection team at Sintons.

“At Sintons, we see the impact of this on a regular basis with our nationally-renowned Neurotrauma and Court of Protection teams being able to work together to guide families through such a difficult period.

“By holding this Court of Protection Conference in conjunction with the Child Brain Injury Trust, and being joined by a superb line-up of speakers who are true experts in their field, we are pleased to share our experience and expertise in this field with fellow professionals, who we hope will be equipped to offer even greater support to their clients.”

To reserve your place, please click on the ‘Register for this event’ button.

Court of Protection Conference 2022

Sintons’ Court of Protection team, in association with the Child Brain Injury Trust, invites you to explore the support available for Children with Acquired Brain Injury (ABI).

Sintons’ team of highly experienced Court of Protection lawyers and guest speakers will guide you through the following topics:

To reserve your place, please click here.

 

Practical considerations when managing a person’s property

A property and financial affairs deputy appointed by the Court of Protection is required, not only to secure and manage a person’s financial assets, but also to manage their property.

What that involves on a day-to-day basis depends on whether the property is owned or rented, and whether the person is living in the property.

Below are some of the considerations that must be made when managing a person’s property.

If the person owns the property and they live in it

  • Registering a restriction against the title with HM Land Registry
  • Insuring both the building and contents, including any aids and equipment
  • Carrying out maintenance and appliance checks
  • Ensuring that the property remains suitable for the person
  • Ascertaining whether there is any statutory funding or grants available for upgrading the property, such as Disabled Facilities Grant and the Warm Home Grant
  • Checking the person’s entitlement to benefits, such as Sever Mentally Impairment Council Tax

If the person owns property that they rent out

  • Insuring the building
  • Obtaining the annual gas safety certificate and electrical safety certificate and providing the tenant with copies
  • Making sure that a tenancy agreement is in place and the deposit has been paid into one of the available protection schemes
  • Agreeing a detailed inventory of contents
  • Ensuring regular maintenance checks are carried out

It should be noted that if the person is in a care home and funding their own care, a deferred payment arrangement can be entered into with the Local Authority.  A “deferred payment arrangement” is a loan secured against the person’s home with a fixed interest rate applying.  This can allow the person to keep their home, while continuing to meet the costs of care.  The loan is to be repaid when the person passes away or on the earlier sale of the property.

If the person is a tenant  

  • Entering into a tenancy agreement and agreeing an inventory
  • Insuring the contents, including any aids and equipment
  • Ensuring that the property remains suitable for the person
  • Obtaining copies of the annual gas safety certificate and electrical safety certificate from the landlord
  • Getting details of the how the deposit has been protected
  • Applying for parking permits, particularly if the person has a blue badge or regular visitors, such as therapists or carers, who may need to park outside of the property
  • Maintaining regular contact with the landlord with regards to the upkeep of the property

It may be that the person you are supporting requires a property to be purchased for them, or they may wish to sell their current property because it is no longer suitable for them. Our next blog will deal with applications to the Court of Protection to purchase and sell property on behalf of the protected party.

Sintons’ Court of Protection team expands further

The fast-growing Court of Protection team at Sintons is further expanding its team as its national workload continues to increase.

Caitlin Edwards is the latest addition to the team. She takes up a role as a paralegal to support its work in supporting people who have often had accidents resulting in serious life changing injuries, as well as supporting their families. 

The team, recently hailed as “efficient, knowledgeable and extremely professional” by Legal 500, is an area of significant progress and potential for Sintons, with its fast-developing reputation seeing it appointed in cases throughout the UK.

Caitlin, a law graduate from Durham University, said: “This is a fantastic role for me in a team which is known far and wide for its work.

“As a law graduate, a career in law has always appealed, and my role in Court of Protection work will also bring in my experience of supporting people who have sustained life-changing injury through my previous work with brain injury charity Headway.

“I’m really excited to become part of the Court of Protection team and to play my role in the next phase of its growth and development.”

Paul Nickalls, head of the Wills, Trusts and Probate department – of which the Court of Protection team is part – said: “Our Court of Protection team has worked very hard over the recent past to build on over 120 years of private client expertise and really make gains in this very niche area of work. As a result, we are increasingly being instructed nationally on the strength of our reputation and the consistent quality of our legal and client service.

“We are delighted to welcome Caitlin at this very exciting time for the department. The whole team are looking forward to working with her as we continue to grow our presence and capability even further, enabling us to support even more individuals and families across the UK.”

Sintons again recognised for capability across the board by Chambers 2022

Sintons has again been hailed as one of the leading law firms in the North of England in newly-released rankings from Chambers and Partners UK.

The firm, consistently praised for its strength and capability throughout the business, again wins recognition for its legal expertise, deep experience and first-rate levels of client service.

Practice areas across the business win recognition as leaders in their field, with healthcare again being confirmed as one of the key advisors nationally for its work with growing numbers of NHS Trusts, organisations, professionals and healthcare businesses across the UK.

Chambers and Partners 2022, published today, also highlights 17 of Sintons’ lawyers as being stand-out names in their specialism, many of whom are recognised in the legal marketplace as being leading figures regionally and nationally.

The rankings come only weeks after Sintons won similar praise across the board from Legal 500, which also recognised the wide-ranging expertise, legal capability and service excellence the firm delivers to its clients.

Both Chambers and Legal 500 are independent publications which assess and rank law firms and lawyers throughout the UK, based on interviews, examples of work, and client and peer testimonials.

“For over 125 years, Sintons has built a well-deserved reputation as a first-rate legal advisor delivering outstanding levels of service to its clients, and those values have remained at the heart of the firm since our foundation in 1896,” says managing partner Christopher Welch.

“That these key features are consistently highlighted by independent legal publications like Chambers and Partners, and recently Legal 500 too, is a huge endorsement of what we do here at Sintons. Businesses, families and individuals put their trust in us to deliver an outstanding legal and personal service and that is what we deliver.

“Chambers again confirms our strength across the whole Sintons business, with capability and talent running throughout the firm, and a shared commitment by everyone here to continue to build Sintons so it can be the best it can be. We are all delighted to again have our efforts recognised in this way.”

Sintons once again wins praise from Legal 500 2022

Law firm Sintons has again maintained its reputation as one of the leading law firms in the North of England in newly-released rankings from Legal 500, winning plaudits for its strength and expertise across the firm.

Legal 500 2022, released today, renews its praise of Sintons and confirms them as being a go-to legal provider in the region in many key practice areas.

The independent publication – which ranks law firms and lawyers across the North, compiled as a result of examples of work, interviews and client and peer testimonials – names eight of Sintons’ lawyers as leading individuals, three as next generation partners and a further six as rising stars. One of its lawyers also secures the highly coveted accolade of being named in the Legal 500 Hall of Fame, in recognition of consistent achievement throughout their career.

The latest Legal 500 rankings add further to the long-standing reputation of Sintons – winner of five awards at the most recent Northern Law Awards, including overall Law Firm of the Year – as a leading player in the North of England, with national reach and capability in many of its departments.

The leading individuals at Sintons, as identified by Legal 500, are:

The next generation partners, as identified by Legal 500, are:

The lawyer named as member of the Legal 500 Hall of Fame is:

The rising stars at the firm are:

Christopher Welch, managing partner of Sintons, said: “We are very proud of the reputation we have built during our 125 year history as being a law firm which consistently offers legal excellence and an outstanding service to our clients, and for these two factors to again be recognised by Legal 500 as being a staple of Sintons’ offering is very pleasing.

We are delighted to maintain our position as one of the leading law firms in the North of England, with strength, capability and experience running throughout our practice areas.”

Deciding who to Appoint as Deputy

A deputy is responsible for making decisions on behalf of another person who has been assessed as lacking the requisite mental capacity to make decisions for themselves. Those decisions can relate to property and financial affairs or health and welfare. Therefore, it is important that careful consideration is given to who should be appointed as deputy, including whether the deputy should be a lay deputy (such as a friend or family member), or a professional deputy (such as a legal practitioner or trust corporation).

Role of a Deputy

The role of a deputy is often an onerous one. It carries with it a great deal of responsibility. Anyone putting themselves forward as a deputy must have the time to fulfil the duties and obligations placed upon them by the Court of Protection. They must act in accordance with the legislation that underpins the appointment. The deputy will need to understand their responsibilities under the Mental Capacity Act 2005, the Code of Practice, the Court of Protection Rules, and the Deputy Standards.

A fundamental part of the Mental Capacity Act 2005 is the requirement to act in a person’s best interests. When establishing what would be in a person’s best interests, the deputy must consider the person’s present and past wishes and feelings, their beliefs and values that would likely influence the person’s decision, written statements made when they had capacity and any other factors which the person would likely consider if they were able to do so. The deputy must also involve the individual who is deemed to be lacking capacity as much as is reasonably practicable and consult with those close to that individual where appropriate.

Deputies are supervised by the Office of the Public Guardian and the Court of Protection imposes a level of supervision on the deputy. At least once a year, the deputy is required to submit a detailed report to the Office of the Public Guardian setting out the decisions made on behalf of the person who lacks capacity. This is to ensure that all decisions made by the deputy are made in the person’s best interests. In addition to the annual reporting requirement, a deputy must keep all documentation including receipts, DWP and Local Authority correspondence and reports from heath organisations like the NHS.

Professional Deputy or Lay Deputy

Anyone who knows the person who lacks capacity, including friends and family members, can apply to the Court of Protection to be appointed as a “lay deputy”. Alternatively, a legal practitioner or a trust corporation can be appointed to be a “professional deputy”.

Whether it is appropriate to appoint a professional deputy will depend on the individual circumstances. A professional property and financial affairs deputy might be appointed where an individual has more complex financial affairs which require careful management. If a person is due to receive a large sum of money from a personal injury or medical negligence claim, the Court of Protection will often order that a professional property and financial affairs deputy is appointed to manage these funds. A professional property and financial affairs deputy will deal with all financial matters on behalf of the person including, but not limited to, making payments and monitoring cashflow, dealing with the purchase and adaptation of property, employing the services of care and therapy teams, and ensuing that the person is receiving the maximum state benefits they are entitled to. By instructing a professional deputy to deal with such matters, allows the injured party and their family to focus on rehabilitation and rebuilding their life post-accident.

At Sintons, we have a designated trust corporation which can act as a professional property and financial affairs deputy. It is supported by a specialist team of highly experienced Court of Protection legal practitioners. If you would like further information or advice regarding the Court of Protection or assistance with an application, please do not hesitate to contact any member of our Court of Protection team on 0191 226 7878.

New leadership and promotions for Sintons’ Personal & Family team

The Personal and Family Department at Sintons is moving forward with new leadership, as it seeks to push on with plans to grow its presence in the North East and wider UK.

Through a series of high-level promotions, which build the reputation and expertise of Sintons even further, the highly esteemed department is now better placed than ever to drive forward its ambitions nationally.

Under the new leadership of Paul Nickalls, the Personal and Family Department – which brings together Sintons’ Family, Residential Property, Court of Protection and Wills, Trusts and Probate Teams – will continue to develop its range of services, while bringing in new talent and developing its existing team of lawyers.

Paul, regularly named as one of the leading solicitors in the North of England by both the Legal 500 and Chambers, is a highly experienced private client lawyer who is appointed to work on complex, high value administration of estates and inheritance tax planning matters.

He continues in his role as head of the Wills, Trusts and Probate Team, which was named Private Client Team of the Year at the most recent Northern Law Awards.

The Personal and Family Department is further boosted by the appointment of two new partners in Louise Masters and Emma Saunders.

Louise, a specialist family solicitor who regularly works in high-value matrimonial matters and in cases involving children, has also become the new head of the renowned Family Team which won Family Law Team of the Year at the Northern Law Awards.

Emma, hailed as a leader in her specialist area of contentious probate work by the Legal 500 and Chambers alike, has significantly raised the profile and capability of Sintons in the field of contentious private client work since her relocation from a top 100 London law firm.

Additionally, Sophie Robinson-Davies, who leads the Court of Protection Team, has been promoted to associate in recognition of her achievements in growing the team and its national reputation.

“Our Personal and Family Department is one of the strongest and most highly-esteemed in the North of England, and we are regularly instructed in matters from across the UK in all four of our specialist teams, particularly those of significant value and complexity,” says Paul.

“Through the new senior appointments and leadership changes, we are better positioned than ever before to continue to progress. Backed by a team of dynamic and highly capable lawyers, I will work alongside Louise, Emma, Sophie and our head of residential property Anna Barton to develop our presence on a national level even further.”

Christopher Welch, managing partner of Sintons, says: “Our Personal and Family Department comprises the expertise our private clients need, with the levels of unrivalled client service which means we have become the trusted advisor to generations of families across the UK. Sintons as a firm is built on this ethos, and we are very proud of our reputation for consistently delivering this.

“Through the appointment of Paul as head of department, supported by the promotions of Louise, Emma, and Sophie to reflect the leadership roles they fulfil within the firm, coupled with the outstanding service they continually deliver to clients, we are again demonstrating our commitment to investing in our people and offering opportunities for professional development.

“We will continue to invest in the progression of our personal and family team as we press on with efforts to grow further both regionally and nationally.”

Personal Injury Trusts and Deputyships

When someone has received, or is due to receive, compensation for an accident that they have suffered then they should be referred to a specialist for advice on either setting up a personal injury trust or having a Court of Protection deputy appointed to hold the damages released to them as part of the claim.

Depending on whether the individual who has suffered the accident has capacity to manage their property and financial affairs will determine which of these two options is most appropriate.

Where the individual has capacity.

Where the individual has capacity, they can transfer the damages that they receive into a personal injury trust.

There are many benefits to setting up a personal injury trust. One of the main benefits is that, by virtue of the damages being held in a trust, they are disregarded from means-testing calculations when assessing entitlement to state benefits or statutory funding. The individual who has suffered the accident retains control of the funds as beneficiary of the trust but will appoint two or more people to act as trustees (one of which can be them). The chosen trustees will assist the beneficiary in managing payments from the trust account and do so under their duty to protect and support the interests of the beneficiary.

The trustees can be close friends, family members or, in some cases, it is appropriate to appoint a professional trustee. The need for a professional trustee will depend on the individual circumstances and, therefore, it is always important to obtain specialist advice.

Where the individual lacks capacity

In circumstances where the injured party lacks capacity to manage their property and financial affairs, either by virtue of the injuries sustained in the accident or because of a pre-existing condition, then the route in this circumstance will usually depend on whether the individual made a Lasting Power of Attorney (LPA) in relation to their property and financial affairs prior to losing capacity.

If the individual has made a valid LPA, then their chosen attorneys can apply to the Court of Protection to seek authority to create a personal injury trust on behalf of the injured party to hold their damages award. Applications of this nature are complex and are only successful if the Court of Protection can be persuaded that setting up the personal injury trust is in the injured party’s best interests and is the most appropriate way to manage the damages award.

If the Court of Protection does not think that an application of this nature is in the injured party’s best interests, or if the injured party did not make a LPA prior to losing capacity, then the route that would need to be considered is an application to the Court of Protection to appoint a property and financial affairs deputy. For more information on deputyships, please click here.

There are several differences between the appointment of a trustee in a personal injury trust and the appointment of a property and financial affairs deputy. The main difference is that a deputy is given authority over the entirety of the individual’s finances and should the individual regain capacity, the appointment of a deputy comes to an end. Trustees appointed by virtue of a personal injury trust only have authority to assist with the management of the funds in the trust and the appointment is ongoing regardless of changes in capacity.

Our Court of Protection team is routinely instructed as a professional deputy and professional trustee and gives advice around these matters to individuals and those supporting individuals who have lost capacity.

If you would like further advice on personal injury trusts or the appointment of a property and financial affairs deputy then please do contact our Court of Protection Team for further guidance and information.

‘We’re proud to have helped make Sintons the firm it is’

As Sintons celebrates its 125th anniversary, some of its team share their thoughts and experiences of being part of the firm and playing their role in its growth. From those who have been at Sintons for over 30 years to those who have joined more recently, here they discuss what makes the firm stand out in the competitive legal marketplace, while also being a great place to work.

Amanda Maskery, partner and head of NHS healthcare

“I have been at Sintons now for nearly 20 years and during that time I have progressed from trainee to partner level and more recently to head of our fast-growing NHS Healthcare team. Many of my clients have been with Sintons for years and grown with me and I think a large part of that is because we have built such strong and trusting relationships with them.

The firm has grown significantly since I first started working here – it has doubled in size.  However, the same culture, values and traditions are still imbedded which means whilst the firm changed in size, it still embraces the supportive nurturing culture you only find at Sintons which cascades from the top down.

As I began life as a trainee at Sintons, it’s fantastic to be able to support others in progressing and achieving their goals. We have a strong team and great dynamic and that is evident to our young lawyers who bring with them a refreshing approach to the Sintons culture.”

Leah Greenwell, solicitor apprentice

“Starting my career, it was important to find a firm with local roots and a reputation for providing high quality training. The first-class levels of service Sintons provide is testament to the standard of training they deliver, and there was no question which firm I wanted my career to start in.

Sintons have always focused on ensuring that my development is put first and have laid the foundations for a successful career as a solicitor. Being a full service firm has given me the opportunity to experience all areas of law and has exposed me to a variety of high value and complex work. I look forward to what the future holds for me at Sintons.

Although the marketplace is competitive, Sintons longstanding history and their presence, both locally and nationally, will always place them at the forefront.”

Anne Smith, secretary

“I started at Sintons in 1986 and this year in November will have been here for 35 years.

I still remember my first day like it was yesterday. Everyone was so friendly and welcoming, and it is still like that today – almost like a second family to me.

“I have mainly worked in private client and worked for lots of fee earners and partners. In 2000 I started working for Steve Freeman who then went on to become a Partner and Head of the Private Client Department. I have now worked for him for 21 years this year and I can honestly say it has been a pleasure and an honour to work for such a lovely man – we have a great working relationship. I also work with the rest of the Family Department and work for such lovely fee earners.

I am also very proud to say that my daughter Emma also works for Sintons in the Conveyancing Department and she also loves her job and the team she works with.

I have seen many changes over the years but one thing remains constant – Sintons is a great place to work. I have made lifelong friends here and they will remain so.”

Emelie Vardon, solicitor

“Sintons’ heritage was very important to me when choosing to join Sintons. I came here as a trainee solicitor in 2017 and making the right choice for my future career was crucial. Knowing Sintons’ reputation and history, I couldn’t have made a better decision.

This is such a great place to work with a warm and welcoming environment. Following the completion of my training contract in 2019, I joined our developing Wills, Trusts and Estate Disputes team. Under Emma Saunders’ excellent leadership and support, my first year as a qualified solicitor has been excellent groundwork for my future career in this specialist area of law.

As a full-service law firm, I consider that Sintons is well-placed in the competitive market.”

Mark Dobbin, partner and head of real estate

“I joined Sintons as a trainee in September 1997. At the time the firm consisted of about 80-90 people. We were operating from an office in Portland Terrace in Jesmond, it was like a rabbit warren for a new starter as it was multiple old terraced houses converted and joined on different floors.

The main changes have been the massive growth in size and expertise, plus multiple office moves until finally landing at the Cube. When I qualified in 1999 myself and the partner at the time (Andrew Walker) were the Sintons commercial property department. Since then we have grown significantly.

Sintons has always been and remains a great place to work, we have an excellent team in Real Estate and will continue to succeed because of the efforts of our staff.”

Pippa Aitken, senior associate

“Sintons was much smaller when I joined in 1998. It was a friendly, family firm renowned for its reputation in private client and personal injury work. There was no dedicated corporate and commercial department.

“I was the only trainee and was sent on all sorts of weird and wonderful jobs – witnessing wills, attending infant settlements and the odd trip to the bank for the accounts department!

Sintons has become a lot more sophisticated in its working procedures and there is a much faster pace of life with emails being the most popular form of communication. I have seen some great lawyers leave and some great lawyers arrive but everyone soon seems to inherit the ‘old’ Sintons sense of fun, respect and teamwork.

Sintons is in a great place going forward. Virtual working has opened up some great opportunities to spread our wings and engage with clients even better than before.”

Sarah Smith, partner and head of licensing

“The firm has almost doubled in size since I started in  2005. The range of services offered by the firm has expanded quite significantly since then too, making the firm much more attractive to commercial clients.

When I first came to Sintons, I headed up the department with Lucy Winskell (now chair of NELEP and Pro Vice-Chancellor of Northumbria University). Since her departure I have headed it up myself. In spite of that, the department has grown in its client base and the amount of work we deal with on an annual basis.

With the growth in size and services we continue to see, I think Sintons are very well placed in the market to take advantage of opportunities going forward.”

Astrid Stevenson, secretary

“I joined Sintons on 21 October, 1997, and will have been here for 25 years this year.

I think when I started there were only about 80 people working at Sintons. We were based in Portland Terrace then moved to Osborne Terrace. We didn’t have open plan working like we have now, we had little rooms with approximately 3 secretaries in each room. I shared a room with Anne Smith from the first day I arrived and we have been firm friends ever since. Fee earners all had their own office. Basically, it was like a rabbit warren.

The staffing levels were very much smaller then, as I say about 80 staff then and now we have more than double that number. The computer system (Word Perfect 5.1) and equipment were top of the range for the time, and I think that has carried on until this day, our IT department have the latest of everything and are basically top notch.

Since I started 25 years ago, the firm has changed and has always moved forward with the times.  When I started there were no female partners. Hilary Parker and Karen Simms became the first, which was a very welcome breakthrough for Sintons.

We were like one big happy family with lots of social events, which thankfully still happen to this day, keeping the ethos of Sintons going.

I think if I didn’t enjoy working here I wouldn’t be celebrating my 25th years this year at Sintons. I’ve worked for the head of dispute resolution Angus Ashman for 24 of those years, and I think we work well together because we work as a team.

This is a very nice place to work, the people are all friendly and If anyone needs help with anything there is always someone there to help. I always think we are only as good as the tools we work with and I must say Sintons do provide all the best equipment and people and it makes the job so much easier if you have things like that in place.”

Sintons’ development – reflections from the Chairman

Sintons’ chairman, Alan Dawson, is one of the firm’s longest-serving people, having joined in 1980. Here, he shares his thoughts on some of the biggest changes and advances he has seen in the past 41 years.

Technology

When I joined in 1980, we used manual typewriters, although thankfully electric typewriters had recently become available. There were no screens at that time, but over the years we added one-line screens to the typewriters, then that went up to three or four lines. It was the early 1990s before we introduced computers.

There were no colour photocopiers so all of the plans we copied were in black and white. We would have to go over them with coloured pens to make them the same as the original.

The introduction of fax in the 80s was a game changer, everything before then was done by Telex or telegram if we needed ‘instant’ communication. The only problem was that due to the paper fax machines used at that time, the print would fade – we’d go back to the file six months later and the sheet would be completely blank! We had to remember to photocopy the fax when they came in for use in our records.

With property completions, all bank-to-bank transfers involved getting an actual cheque from the bank, and then going to the office of the other solicitor in the transaction to inspect the deeds and then complete the deal. Fridays, the traditional completion day, were often spent going between solicitors’ offices in Newcastle.

When mobile phones were introduced, we had one mobile for the firm to use, we didn’t have one each. It was one of the brick-like phones with a huge battery, but it was a huge novelty.

Thankfully things have moved on hugely, and Sintons now has a first-rate technology and IT infrastructure, which enables us to offer a very efficient service to our clients while keeping their data fully secure.

Size of the firm

Back in 1980, we had about 36 people – now we have around 170.

We really started to grow from the mid to late 90s, and in 1998 we moved our offices from Portland Terrace in Jesmond to bigger premises in Osborne Terrace, which comprised three and a half houses next to each other with an overspill office further down the road. We imagined that would give us room to grow for the next 15 years – but within the next two or three years, it was already too small.

We came to The Cube in 2004 and at first didn’t use the top floor of our four-floor building, although within the next couple of years we had expanded into there.

Over the years, we have added many outstanding lawyers to our team, both through recruitment from other firms as well as training young people-in house. Our commitment to supporting aspiring lawyers through their training contract has been unfaltering – I joined as an articled clerk (or trainee, as it’s now known) and have progressed through the ranks.

As the firm has grown then so too has our back-office and support functions developed. We didn’t have the infrastructure we have now, so no HR, IT or marketing department.

Our accounts system was all manual, the cashier had to write everything by hand. There was one card per client, so if you had to borrow it, then they couldn’t make any more entries for that client until you returned it.

Our HR function was our office manager, who kept a record of who was off and the reasons for their absence – reading it now, some of the reasons are quite amusing!

Law firms weren’t allowed to advertise at all until the late 1980s, so the only kind of marketing we could do was through the Yellow Pages. Now, we operate at the very forefront of the sector, adopting digital way before many of our competitors, and that early investment is helping us to stay ahead in the marketplace.

Practice areas

In the 1980s when I joined, Sintons had a very significant insurance litigation practice which acted for four or five of the major national insurers. The revenue from that area of the business probably accounted for two thirds of our entire income. However, in the early 1990s, we recognised that reliance on a few large clients or a particular work stream was not the best way to develop the firm and could make us vulnerable. We therefore made concerted efforts to radically change our business model and to further grow the other practice areas we had operated in for many years, including private client, corporate and commercial and real estate, and they proved to be areas of strong development for us. They continue to be key areas of the business for us and will be central to our ongoing progress as a firm.

We also moved into claimant personal injury work, which really took off in the late 90s and early 2000s. More recently, we have developed our national reputation as specialists in catastrophic and serious personal injury work with a thriving specialist neurotrauma department which handles life-changing brain and spinal cord injury work.

National reach

In the early days, we were more of a regional firm with clients mainly across the North East, and some in the wider North. Occasionally, clients moved to elsewhere in England which helped us to reach out nationally on a small scale, but we didn’t have much of a national reach.

However, as we grew as a firm, we started to work on a more national basis and now on an international basis as well. The improvement of technology was also an important factor in enabling us to communicate with people wherever they were by phone or fax, but more recently by mobile phone, email or even video calling which has proved so important during the pandemic.

Through our efforts to grow individual areas of the business – which in many instances have demonstrated substantial growth over the course of a number of years, underpinned by the hard work of our people – we have been able to add outstanding new lawyers to the team, whether they have moved to Sintons from elsewhere or have been trained in-house.

Now, we have a number of areas of the business which are regarded in the highest terms nationally, including our healthcare team, which has grown its presence over the past 10 to 15 years to become a national leader in its field.

We continue to receive growing numbers of instructions from across the UK and wider afield in almost all areas of the business, as our capability and reputation as a firm builds further still.

Building on our heritage to create a strong future

1896 marked a year of historic new beginnings and breakthroughs.

The year that saw the first modern Olympic Games held in Athens;

The introduction of the X-ray;

The development of the first Ford vehicle, the Quadricycle.

And in such a landmark year as 1896, with events taking place which went on to change history, it is fitting that this was the year when Sintons was founded and the foundations laid for the firm that it would become.

Having been founded as Sutton Cheshire & Thompson on February 8, 1896, to serve the people of Newcastle, the firm then merged with John H. Sintons & Co in 1971 – later becoming Sintons – and has grown into one of the leading law firms in the North of England, acting for ever-increasing numbers of business and private clients both regionally and across the UK.

Over the past 125 years, Sintons has developed a reputation for the quality of its advice, and crucially, the deep and trusting relationships it builds with its clients borne out of the outstanding service it delivers to them.

There are so many momentous events and developments which have taken place over such a long period of time and the world has changed, and continues to change, beyond recognition.

However, throughout that period Sintons has been working alongside individuals, families, businesses and organisations for 125 years, adapting and changing to meet new challenges and will continue to do so for the years to come.

As a law firm for changing times, Sintons continues to evolve, as it has done since 1896, to ensure it stays at the forefront of the legal market and in the best possible position to deliver excellence to its clients.

“Over the past 125 years, we have continually shown we are innovators, we are leaders. We have never been afraid to take bold decisions,” says Christopher Welch, managing partner of Sintons.

“A great example of this is when we invested in our head office, The Cube, in 2004. We were moving to an area of the city which was largely undeveloped and were, largely, surrounded by the old Scottish and Newcastle plant. Looking around us now, this is a thriving, fast-growing and sought-after area, which is the site of huge investment from both business and academia. We had the foresight to buy into these brave future plans and the ambition to want to become part of it.

“In these changing times, we will continue to evolve and develop, as we have done throughout our history, to ensure that at all times we are delivering the very best service to all our clients while also building and investing in the firm from within.

“We have stood the test of time for 125 years and are committed to ensuring Sintons maintains the reputation and presence that has been built so carefully into the future.”

For Christopher, who joined Sintons in 2003, the main differentiator between Sintons and its competitors is its unfaltering commitment to clients.

While continuing to attract new clients nationally, the firm is rightly proud of its longstanding client base, which includes many who have been with Sintons through multiple generations of their family or business ownership.

“The firm’s absolute priority from day one has been our clients and ensuring they receive the highest standards of legal and personal service. Our reputation is built on those foundations, which were laid by our previous generations of Sintons’ lawyers, and is one we are proud to continue to develop further,” says Christopher.

“At Sintons, we care about what we do, how we do it and we never forget that the clients we are working with are depending on us for, often, some of the most momentous decisions of their lives. As a firm, we recognise both the privilege and the responsibility that goes with this, it is fundamental to how we work and to our values as a business.

“Our clients are the front, back and centre of everything we do. We’ve been there for them whenever they’ve needed us for 125 years and that will continue to be the case as we move forward.”

And building further on its reputation for leading the way in the legal marketplace, Sintons continues to innovate to stand out from the crowd.

Having carried out a full rebrand in early 2020, to give the firm a fresh yet timeless identity, Sintons continues to invest in its future.

“Our rebrand was a significant step for the firm,” says Christopher. “Our branding represents the firm that we are; bold, innovative and providing clear and confident advice to our clients – a firm that stands out from the crowd.

“The use of technology to better serve our clients has always been an essential part of our growth strategy. Our founding partners would be aghast at the thought that we were able to have virtually all our colleagues working remotely – with some as far away as the Cayman Islands and Texas – without any impact on client service.

“By investing heavily in our website and online presence, we have created a resource which is available to clients wherever they are in the UK or indeed the world, giving them immediate access to information and support in ways which weren’t available before.

“The legal sector isn’t always the first to embrace change, but we are rightfully proud of the reputation we have built for standing out in that respect. For 125 years, we have taken bold moves, we have never shied away from making investment to equip the business for the long-term, and we have shown foresight and innovation to make the firm what it is today.

“This is a landmark anniversary for us, and in uncertain times, the investment we have made for many years in our infrastructure, development of our people and strategic recruitment means we remain confident in our future and the service we can continue to provide to our clients and to the regional community of which we are a fundamental part.

“These truly are changing times – but with 125 years behind us then we must be doing something right!  We know that our business will continue to evolve, with further investments in technology and infrastructure changing how and where we work. However, as we move forward, what is clear is that Sintons will always be right there, by the side of our clients, as we have been since 1896.”

Law firm Sintons is marking its 125th anniversary

Since its foundation in 1896, Sintons has grown to become one of the leading law firms in the North of England with a client base which extends across the whole UK.

It has become known as a key advisor to businesses and individuals acting on major, complex matters, regionally, nationally and internationally.

In many of its practice areas, including business, healthcare, private client and neurotrauma, Sintons is regarded as one of the UK’s leading specialist advisors.

Sintons has built a well-deserved reputation for delivering expert legal advice and outstanding service to every client, which is at the heart of the trusting and long-lasting relationships it has built during the past 125 years.

Testament to the quality of service provided is the fact that many of the firm’s clients have been with Sintons for decades, with the firm routinely being trusted to advise multiple generations of families and business owners.

Now, in its 125th year, and despite the ongoing challenges being presented by the COVID-19 pandemic, Sintons remains confident in its future as the firm continues to develop and grow.

The firm can trace its roots back to the formation of Sutton Cheshire & Thompson on February 8, 1896, which merged with John H. Sinton & Co in 1971 to become Sinton & Co, and later Sintons.

The expansion of the amalgamated firm has seen it move offices a number of times in order to house its growing number of employees, moving from Portland Terrace in Jesmond to bigger premises in Osborne Terrace which were soon outgrown, resulting in the relocation in 2004 to its current purpose-built home, The Cube, opposite St James’ Park in Newcastle. A second site was added with the opening of a consulting office in York two years ago to help the firm service its increasing demand for work from around Yorkshire.

The move in 2004 acted as a springboard in the development of Sintons, with many people not having realised how big the firm had grown and heralded a period of strong growth across the firm as a whole, with legal talent continually added to build its expertise and capability further still.

This has been backed by continued investment in its IT infrastructure, digital offering and people, to ensure Sintons is well positioned for the future.

“We are very proud of the reputation we have built over the past 125 years, which has seen us become known on a national scale as a law firm of the highest capability which is absolutely dedicated to its clients,” says Christopher Welch, managing partner of Sintons.

“We have never been afraid to be leaders and to take bold decisions, which have frequently put us at the very forefront of the legal sector. We were, for example, building our online presence and digital business development platforms way ahead of our competitors and long before it was something that was embraced widely within the legal sector.

“Going forward, we are in a strong position, having built on the heritage and legacy of Sintons over the past 125 years to create a law firm with a national reach, regarded in the highest terms for the quality of both our legal and personal client service.

“This is a very significant milestone for us as a business, and while we reach it during some of the most challenging economic conditions in the country’s history, we remain confident in the future of Sintons.”

What is the Court of Protection?

The Court of Protection makes decisions on behalf of people who are incapable of making those decisions personally.

The Court can make decisions in relation to a person’s welfare and/or their property and financial affairs.

The Court has the powers to:

  1. Decide whether an individual can make a particular decision or, indeed, any decisions for themselves.
  2. Appoint someone to make decisions on behalf of an individual who cannot make decisions for themselves.
  3. Consider applications to make statutory wills or gifts on behalf of an individual who does not have the capacity to make a will for themselves or give gifts to other people.

Sometimes the Court must make its decisions urgently. Usually this happens when the decision relates to a person’s medical treatment.

What is a Deputy?

When someone lacks mental capacity and needs longer-term assistance with regards to their affairs, the Court of Protection may appoint a “deputy” to manage that person’s affairs for them. This is not normally necessary if the person has made a power of attorney since the person named in that document can manage their affairs for them

There can be two different kinds of deputies – one for property and financial affairs and one for health and welfare. It is not always necessary to have both.

A deputy can be either someone close to the individual, such as a family or friend, or a professional person, such as a solicitor.

The application process to appoint a deputy is not straightforward and requires a considerable amount of information. In addition to this, a capacity assessment needs to be carried out to confirm that the person who is the subject of the application is indeed incapable of making decisions for themselves. Capacity is a very complex matter and, therefore, it is paramount to the success of the application that the capacity assessment is detailed, thorough and addresses the correct legal requirements.

Once appointed, the deputy can make decisions on behalf of the person who lacks capacity subject to the boundaries set by the Court. All decisions must be made in the best interests of the person who lacks capacity.

To ensure that deputies are acting both in the best interests of the person who lacks capacity and within the boundaries set by the Court, they are supervised by the Office of the Public Guardian (“OPG”). The deputy must send an annual report to the OPG explaining the decisions they have made.

If you are considering making an application to be appointed as a deputy for a relative or loved one, our Court of Protection Team can guide you through the process and explain in clear and simple terms what is involved and how long it will take. Acting as a deputy is a demanding role and the application to be appointed is only the first step.  Our team will support you beyond your appointment to help you to feel confident in your role as deputy and to enable you to carry out your duties effectively.

If the most appropriate person to be appointed as a deputy is a professional, then members of our Court of Protection Team are often instructed to act as a professional deputy and have a wealth of experience in managing funds on behalf of individuals.

If you would like further information or advice regarding the Court of Protection or assistance with an application, please do not hesitate to contact Melissa Gill on 0191 226 7922.  Alternatively, you can contact any other member of our Court of Protection team on 0191 226 7878.

Sintons’ Court of Protection team thrives despite global pandemic

The specialist Court of Protection team at Sintons has seen an increase in new instructions from across the UK over the past few months, supporting families as normal despite the challenges surrounding the COVID-19 pandemic.

The team – comprising of Sophie Robinson-Davies, Sophie Moore and Melissa Gill – has continued to attract high quality work nationally during the pandemic, with clients turning to Sintons to help guide them through what is invariably a difficult and distressing time.

The team acts for a wide range of clients but is particularly well known for representing those who have suffered serious injuries, including brain injuries, and have received or expect to receive compensation payments as a result.

The team – which is establishing itself as a leader in its field, with a fast-growing reputation for providing a first-rate legal service – is often approached by the friends and family of individuals, by law firms and by other professional advisors to assist with the management of a person’s finances both while their claim progresses and once it has settled.  The team does not just deal with investing the client’s compensation payment but it also handles day-to-day matters such as buying a client’s clothes or paying friends and family to provide care, overseeing property adaptations and support during their rehabilitation.

An essential part of the team’s role is to manage a client’s finances in the same way that the client would have handled them if they were still able to do so.  To do this, the team needs to really get to know each individual client and the people around them so that it fully understands their specific needs and priorities.

Supporting clients during the current pandemic has presented a series of additional challenges for the team.  It has been required to come up with pragmatic solutions to problems that have arisen including purchasing exercise equipment for clients who were no longer able to access gyms and rehabilitation centres, furloughing support staff where they were unable to come to work and acquiring electronic devices for virtual conferencing and online therapy.

In addition to the day-to-day support that the team gives clients in relation to their finances, it regularly handles one-off applications – including statutory will applications where a client is no longer capable of giving instructions to make their own will, applications to set up trusts on behalf of individuals who have lost mental capacity and providing advice on access to funding and payments from local authorities and the NHS.

The Court of Protection Team forms part of Sintons’ award-winning Wills, Trusts and Estates Team, which is regularly acknowledged to be one of the leading advisors of its kind in the North of England.

Paul Nickalls, head of the Wills, Trusts and Estates Team, says: “Our Court of Protection team is rightly regarded as a leading name in this field, and we have worked very hard to develop our presence in this very specialised area of law.

“Sophie, Sophie and Melissa are all highly capable specialists who advise clients clearly and directly, yet sensitively, supporting them through distressing times and giving the clarity they need in determining the best course of action for their loved one. While over the past few months this has often been done remotely due to the COVID-19 restrictions, they have remained fully contactable and always available – our commitment to our clients will never change.

Sophie Robinson-Davies is often asked to speak to local and national charities to give their service users advice on supporting individuals who lack capacity to manage their property and financial affairs and is regularly invited to sit on guest panels where she gives advice around specific topics to other professionals working within this area of law. In addition to this, Sophie has recently been appointed as a trustee for a national charity that supports those with additional needs where she hopes to strengthen her skill and experience even further in supporting those who can be considered as the most vulnerable in our communities.

“During the pandemic, the team has continued to win new instructions from across the UK, with many new clients coming to us based on our reputation and recommendation of others. Our commitment to delivering the highest standards of both legal and personal service is what makes us stand out in the field, and that is why we continue to make strong progress and development in this area of the business.”

Elderly & vulnerable client team at Sintons appoints another specialist

The fast-growing elderly and vulnerable client team at Sintons has expanded again with the appointment of another specialist.

Sophie Moore has moved from a leading London law firm to join Sintons and is a solicitor advocate, meaning she can represent clients in higher courts.

A specialist in Court of Protection matters, Sophie supports professional deputies to manage compensation awards on behalf of individuals with life-changing injuries. She also works with elderly clients who have lost mental capacity and advises on matters including the availability of NHS Continuing Healthcare funding, Local Authority Deferred Payment Agreements, the appointment and removal of trustees and statutory will applications.

The appointment of Sophie is another significant move in the development of Sintons’ specialist elderly and vulnerable client team, which acts for people across the UK and is receiving growing numbers of instructions on a national level.

The team is part of the firm’s award-winning wills, trusts and estates team, which is currently experiencing a surge in demand for its services amidst the COVID-19 pandemic.

“I am from the North East so it is great to move back here and join Sintons, who are an ambitious firm with a first-rate reputation and a fantastic private client department. The Court of Protection work at Sintons is an area of strong growth for the firm and I look forward to adding further to that,” said Sophie.

Paul Nickalls, head of the wills, trusts and estates team at Sintons, said: “Our elderly and vulnerable client team is growing very strongly with new instructions coming from across the UK on a regular basis, and Sophie’s arrival is very timely to help us build on our fast-growing reputation even further. She is a very capable lawyer in her specialist field of work and we are very pleased to welcome her to Sintons.

“This is a time of particularly strong growth and development for us, with the current circumstances meaning we are receiving huge demand, but the strength and capability we have here means we can continue to deliver the outstanding legal and personal service for which we are known to every client. We are very pleased Sophie will add to this even further.”

Further endorsement of specialist team through new accreditation

A member of Sintons’ specialist elderly and vulnerable client team has secured an esteemed qualification in recognition of her capability in the area.

Melissa Gill has completed the Court of Protection Practice course, which is an endorsement of her ability to offer specialist advice to people with limited capacity.

She secured the qualification after completing a series of modules and practical assessments over a six month period. The distance learning course allowed Melissa to study while continuing to do her job as usual.

Melissa’s new qualification adds further endorsement to Sintons’ elderly and vulnerable client team, which works with people across the UK and is growing strongly through its increasing profile and national case load.

The team is part of Sintons’ highly esteemed wills, trusts and probate department – winner of Private Client Team of the Year at the Northern Law Awards 2019 – which similarly enjoys a national reputation for its work.

Melissa said: “I’m delighted to have secured this accreditation, which adds further to our capability as a team as well as helping me to develop my own expertise in this very specialist area. Our elderly and vulnerable client service is growing strongly and it’s fantastic to be part of it.”

Paul Nickalls, head of Sintons’ wills, trusts and probate department, added: “We are seeing strong growth in our elderly and vulnerable client team and its reputation is growing strongly. We are increasingly being appointed to act in matters across the UK, which is testament to the excellent legal and personal service we offer.

“We continually invest in the development of our team to ensure they are equipped with everything they need to offer the highest standards to our clients, and Melissa’s new accreditation is further evidence of this. Congratulations to her on securing this new qualification.”

Understanding the Court of Protection

Looking after someone’s finances as an attorney under a Lasting Power of Attorney (LPA) or as a deputy under a deputyship order granted by the Court of Protection is not an easy task.

In recent years, much has been said and written in the media about attorneys and deputies defrauding the person who they act for. Whilst some of these actions have been intentional, other times they have not been. Nevertheless, the Office of the Public Guardian or Court of Protection still look into what the attorney or deputy has done, which can have serious repercussions for the attorney or deputy and the person for whom he or she is acting.

A lot of attorneys and deputies do not fully understand their role, which is one of the reasons for falling foul of the rules, and in turn, leads to an investigation by the Office of the Public Guardian or Court of Protection.

For example, an attorney may act for their mother and have borrowed money from her with the intention of repaying her at a later date, or they may have made an outright gift of money to themselves on the basis that they think that their mother would want them to have it now rather than on her death.

However, there are strict rules on what attorneys and deputies can do. Some of these are as follows:

  • An attorney or deputy should not mix the person’s funds with his or her own
  • If a gift is to be made from the person’s funds, it may be necessary to make an application to the Court of Protection for permission to make the gift
  • The person’s funds should be managed properly with professional investment advice being taken if necessary
  • Records and receipts of expenditure should be kept
  • Deputyship accounts should be completed in full and on time. An attorney may also be required to keep accounts if the Office of the Public Guardian have investigated or are investigating the person’s affairs
  • Ensure that the attorney or deputy does not take money as payment for all the work involved in managing the person’s affairs.Usually, an attorney who is a relative or friend will not be entitled to payment unless a prior agreement exists.  Out of pocket expenses can be claimed.

An attorney or deputy must ensure that they familiarise themselves with their obligations and responsibilities so that they fully understand what they are taking on before agreeing to act. The Mental Capacity Act 2005 lays down five main principles for people acting for someone else whether that be as an attorney or a deputy. There is also a Code of Practice that accompanies the Mental Capacity Act and we would recommend that every attorney and deputy obtains a copy of it. We can also offer information and guidance to people taking on the role of attorney or deputy.

Finally, it is also important for those making a Lasting Power of Attorney to set out their wishes and expectations at the outset in order to avoid any misunderstanding and reduce the chance of a dispute later down the line.  We can ensure that this is done and make the process straightforward for those preparing a lasting power of attorney.

Meet the Private Client Team with Melissa Gill

What is your role in the private client team and how long have you been at Sintons?

I am a specialist Court of Protection paralegal within the wills, trusts and probate team and joined Sintons in 2017.

Tell us about your career to date…

I spent 13 years working at Womble Bond Dickinson as a legal secretary, working across their private client offering. I moved to Sintons two years ago, originally as a secretary within the wills, trusts and probate team, but have recently become a paralegal with specific responsibility for Court of Protection matters.

What attracted you to Sintons?

Sintons has an excellent reputation within the legal marketplace and I was aware of the strength of its private client service. I previously worked closely with Sophie Robinson (private client lawyer at Sintons) in her former role at Womble Bond Dickinson and she told me about the excellent team at Sintons and close working relationship within it. The new challenge and opportunity for development and progression at Sintons was a great opportunity for me and one I was delighted to take.

What does your role involve?

I am part of Sintons’ growing Court of Protection team and assist with all matters within it. The team includes members of the wills, trusts and probate team – and I am very pleased to again be working closely with Sophie – as well as the neurotrauma department and I support the work of the team in ensuring clients receive the highest levels of service, for which Sintons is renowned.

What have been your personal highlights to date?

Since joining Sintons, I have been continually challenged and involved closely in a variety of matters, and within two years have secured a promotion to paralegal. My appointment to the Court of Protection team has been a big highlight for me. It is great to be part of a firm which offers opportunities for professional development and is keen to invest in its people.

The private client team is one of the most highly-rated in the North of England. What are the advantages of being part of it?

Not only is this a team of lovely people – we all get on brilliantly and have a superb dynamic – but we have some of the best private client lawyers in the North of England here. Paul Nickalls is an outstanding lawyer and great head of department, who is never too busy to offer help or support with anything you may need. The team is regularly rated highly by the Legal 500 and Chambers UK, and recently we won the wills and probate team of the year at the Northern Law Awards 2019, which is rightful recognition of the legal excellence and first-rate client service we deliver.

How does Sintons differ from other firms you have worked in?

Sintons is a very friendly firm and the open plan nature of the office encourages close cooperation and a great team dynamic. There is no strict hierarchical structure and to have our head of department, as well as the managing partner of the firm, sitting just across the floor from me, available to chat to at any time should you need to, is very telling about Sintons as a business. It has a great ethos and is very supportive of us as professionals and as people.

What are your interests outside of work?

I have a husband and seven-year-old daughter who I love spending time with – I enjoy going to the cinema and love my holidays – although it must be said that my daughter has a much more active social life than me so most of my time is spent taking her to her many commitments!

Court of Protection service continues to grow at Sintons

The specialist Court of Protection service at law firm Sintons is continuing to grow and attract work from around the UK, with one of the region’s most promising lawyers leading its further development.

Sintons’ Court of Protection offering, which supports individuals and families in applications to the court in cases where mental capacity has been lost, has been growing strongly in the recent past with increasing levels of instructions being received on a national basis.

The team, which brings together specialists from across Sintons’ nationally-renowned neurotrauma and wills, trusts and probate departments, is regarded as being one of the leading advisors in its field in the North of England with significant potential for further growth.

Sophie Robinson, a specialist lawyer, is leading the growth of the Court of Protection offering within the wills, trusts and probate team. She is well known and highly regarded for her work, and is frequently cited as a high-potential young lawyer who combines strong legal capability with outstanding client service.

Recently, Melissa Gill, a specialist paralegal, was appointed to support Sophie and the team in their work as the Court of Protection service grows both in terms of size and caseload.

Sophie said: “Our Court of Protection service rightly has an outstanding reputation and the fact we are being instructed to handle matters from across the country is testament to that. The quality of our legal advice, combined with our absolute commitment to clients, ensures we stand out from the crowd. There is a huge amount of opportunity for further development and our growing team is very well placed to take advantage.”

Paul Nickalls, head of the wills, trusts and probate team at Sintons – of which the Court of Protection team is part – said: “We have seen strong levels of growth in this area of the business and Sophie is doing an excellent job of driving that. She is a hugely capable lawyer with an outstanding and very caring manner with clients, which is such an important combination in an area of work such as this. Working alongside our neurotrauma specialists, Sophie is making great strides in developing the profile and potential of this area of work even further.”

Court of Protection specialist appointed to help accommodate growth

The Court of Protection service at Sintons has added a new specialist to its team to help keep pace with its growing caseload.

Melissa Gill has become a Court of Protection paralegal, working closely with other specialists to help Sintons grow its offering in this area of work and accommodate its fast-increasing level of instructions.

Melissa, who spent 13 years working at Womble Bond Dickinson prior to joining Sintons in 2017, has previously worked within the wills, trusts and probate team as a legal secretary, but will now specialise in handling solely court of protection matters.

Sintons’ Court of Protection service supports individuals and families in applications to the court in cases where mental capacity has been lost. It brings together specialists from Sintons’ nationally-regarded wills, trusts and probate and neurotrauma teams.

Melissa said: “Having dealt increasingly with Court of Protection matters in my previous role as secretary to the team, a move into dealing solely in this area of law was very attractive. With 15 years of specialist experience of working with private clients and gaining deep understanding of what is required, I believe I have a lot to bring to the role and to Sintons’ growing Court of Protection team.”

Paul Nickalls, head of wills, trusts and probate at Sintons – which recently won a best team accolade at the Northern Law Awards 2019 –  said: “As one of the leading specialist teams of our kind in the North of England, we are receiving increasing levels of instructions from across the UK, with our Court of Protection work growing strongly.

“We are pleased to add Melissa to our team in a dedicated role – she is a huge asset to our department with excellent attention to detail and client service, and we look forward to her role in Court of Protection continuing to develop.”

Ensure you’re prepared for the future with an LPA

With around 850,000 people in the UK currently suffering from dementia – a figure that is predicted to rise to over a million by 2025 – it is probable that many of those will not have provision in place for such time when they may lose mental capacity.

While having dementia is a scenario that few want to think about, the shocking statistics which show that one person will develop dementia in the UK every three minutes make it an issue which cannot be ignored. As no-one can ever know what the future will hold, it is wise to be prepared, protecting yourself and your family in the process.

It is important to ensure that, should you ever develop dementia or any associated disease like Alzheimer’s, your affairs are in order and you have trusted people in place to make decisions on your behalf should you ever be unable to do so yourself.

The most common means of doing this is through making a Lasting Power of Attorney (LPA), of which there are two forms – one for property and financial affairs, and the other for health and welfare. These can be made together or separately.

By making an LPA, you can nominate one or more attorneys – trusted friends or relatives, or else a professional advisor – who will be legally entitled to make decisions on your behalf with regard to your financial affairs or your medical care, so you can be safe in the knowledge this will always be taken care of.

However, if you did lose mental capacity and did not have proper provision in place, an application will have to be made to the Court of Protection. This can be a time-taking and expensive process – the application can often take up to six months, during which time finances are frozen, and someone else will need to pay for the likes of care costs. Furthermore, you will have no control over who is appointed to make such personal decisions on your behalf – often the person given the role of deputy by a Court is not who you would choose, had you been given the option.

By making an LPA, you can have the peace of mind that, whatever happens, your affairs will be taken care of and someone you trust implicitly will be able to act on your behalf.

Professional advice should always be sought when making an LPA, and a specialist private client advisor will be able to guide you through the process.

Sophie Robinson is a private client practitioner at law firm Sintons. To speak to her about this or any other matter, contact Sophie on 0191 226 7812 or sophie.robinson@sintons.co.uk.

Legal Update: Record number of applications to the Court of Protection

Family Court statistics published by the Ministry of Justice have shown a record number of applications and orders made under the Mental Capacity Act 2005 (MCA) during the first quarter of 2018.

There were 8089 Court of Protection applications made between January and March 2018 representing a 3% increase on the same quarter in 2017. Just under half of the applications related to the appointment of a deputy for property and financial affairs.

There were 10,262 Court of Protection orders during the same period representing a 15% increase on the same quarter last year. One third of those orders related to the appointment of a deputy for property and financial affairs.

These are the highest reported quarterly volumes since 2008 when this record began.

The statistics also demonstrate a 25% rise in deprivation of liberty applications on the same quarter last year. Similarly, deprivation of liberty orders have risen by 17% over the same period.

There were 192,469 Lasting Powers of Attorney received by the Office of the Public Guardian in the first quarter of 2018 – a 3% rise on the same quarter last year. This represents a slowing down of the sharp upward trend seen in 2015 and 2016 which was attributed to the introduction of online forms in July 2015 which simplified and speeded up the application process.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update: Government introduces bill to overhaul the deprivation of liberty safeguards

The Mental Capacity (Amendment) Bill, published on 3rd July 2018, proposes the introduction of a new scheme to replace the Deprivation of Liberty Safeguards which have been widely criticised for being overly complex and bureaucratic.

The government has published Explanatory Notes accompanying the Bill which make for easier reading.

The reforms seek to provide a simpler process for protecting the right to liberty of vulnerable adults which is less burdensome for local authorities. Under the new scheme NHS Trusts rather than local authorities will be responsible for authorising deprivations of liberty occurring in a hospital setting. Authorisation of deprivations of liberty arising in other settings will become the responsibility of CCGs, health boards or local authorities depending on which body is responsible for making the arrangements giving rise to the deprivation of liberty.   Care home managers will be given greater responsibility for arranging assessments and consulting in relation to proposed deprivations of liberty of care home residents.

The Bill will see the current Deprivation of Liberty Safeguards abolished and replaced with a new scheme which closely follows the Liberty Protection Safeguards  framework proposed by the Law Commission last year (discussed in our earlier article. No amendments to the wider provisions of the Mental Capacity Act 2005 are proposed at this stage.

The Bill does not provide a statutory definition of ‘deprivation of liberty’ so the Cheshire West definition will prevail for the foreseeable future.

Not all of the Law Commission’s recommendations have been adopted – significantly the new scheme will not be extended to cover 16/17 year olds – thus missing an opportunity to bring this part of the Mental Capacity Act 2005 in line with the remainder of the provisions which (with the rare exception) apply to those aged 16 and over.

Law Commissioner Nicholas Paines QC has said:

‘This new legislation, based broadly on our recommendations, will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society’.

The government estimates that the reforms will save local authorities in the region of £200 million a year. Although the inevitable flipside to this is an increased financial burden being placed on NHS Trusts, CCGs and care homes.

The Bill must now pass through the parliamentary approval process before it can obtain Royal Assent. It is likely to be late 2019/early 2020 before the new safeguards come into force.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update: Mental Capacity Act – Ascertaining past wishes and feelings in best interest decisions

Re PW v Chelsea & Westminster Hospital NHS Foundation Trust, RW & Others [2018] EWCA Civ 1067: Court of Appeal refuses permission to appeal in a case in which a patient’s family sought to overturn an order that it was not in RW’s best interests to continue receiving clinically assisted artificial nutrition and hydration (CANH) via an NG tube post discharge.  The family’s argument that the judge had given insufficient weight to RW’s past wishes and feelings was held to be unfounded

Background

RW was a 77 year old hospital patient with a diagnosis of end stage dementia. Due to swallowing difficulties he had been receiving CANH via a naso-gastric (NG) tube.  RW was described as bed bound, unresponsive (except to pain) and unable to communicate. He lacked capacity to make decisions about his medical treatment.

RW was medically fit for discharge, indeed he had been ready for discharge for several months. All parties agreed that it was in his best interests to be discharged home into the care of his four sons, one of whom was the Appellant, PW. The treating clinicians considered that it was not in RW’s best interests to be discharged home with an NG tube in situ and that instead he should be discharged home for palliative care and oral comfort feeding only. Clinicians were concern that the presence of an NG tube placed RW at risk of aspiration. Frequent episodes of tube dislodgement in hospital meant that the tube required frequent replacement which had resulted in nasal trauma and discomfort for RW.

NICE dementia guidelines were relied upon which state ‘artificial feeding should not generally be used in people with severe dementia for whom dysphagia [swallowing difficulties] or disinclination to eat is a manifestation of disease severity.’

The family vociferously disagreed with the proposal to withdraw CANH and the relationship between the family and clinicians broke down with the sons’ behaviour towards hospital staff being described as aggressive and confrontational.

The Trust made an application to the Court of Protection for determinations concerning RW’s disputed medical treatment.

Court of Protection

The court heard evidence from RW’s treating clinician and a jointly instructed independent expert who both agreed that continuation of NG tube feeding following discharge home was neither clinically appropriate nor in RW’s best interests. In evidence the independent expert stated:

Offering potentially life lengthening treatment in the form of CANH is no different ethically in this scenario than offering other forms of treatment… Prolonging RW’s life, with no recognition of his pain, indignity or suffering and with no potential for recovery from his progressive illness is unjustifiable to my mind and represents a futile, overly-burdensome intervention. RW can’t communicate, he can’t manoeuvre himself in his bed, he can’t swallow more than tiny amounts, he is likely to experience discomfort in his pressure areas from his urinary catheter. I do not think I am projecting my personal view about his quality of life in saying his existence is undignified.

The Official Solicitor, representing the interests of RW, was in agreement.  The court heard that if NG tube feeding was continued post discharge without complication RW might live for ‘months, a year or possibly longer.’ Were he to develop a complication this could be a terminal event. If NG feeding was stopped the likelihood was that he would die within weeks.

The family contended that RW’s tube should remain in situ post discharge so that CANH could be continued at home. They said they would provide continuous 24 hour care for RW which would reduce the risk of the NG tube becoming displaced. PW claimed to have considerable experience of NG feeding having cared for his young daughter who had required NG feeding due to a progressive neurological illness. He claimed to be trained in the use of an NG tube and tube placement.

The family described RW as a religious and stoical man who was not scared of death but did not believe in quitting. They said, based on past experience, RW disliked hospital and never wanted to go back. The family were adamant that RW would want to be fed at home by NG tube and that he would not want to starve. In evidence the family admitted that these conversations with RW about end of life decisions took place at a time when he was already compromised by his dementia.

Mrs Justice Parker, endorsing the position of the Trust and the Official Solicitor, made a declaration that it was in RW’s best interests to have the NG tube removed and be discharged home for palliative care. Parker J refused the family permission to appeal so the family sought permission from the Court of Appeal.

The Appeal

The case came before Lady Justice Sharp, Lord Justice Jackson and Lady Justice Arden. The grounds of appeal by the family were two-fold:-

  1. The judge failed to appreciate and give any or any adequate weight to RW’s wishes and feelings
  2. The judge overstated the risk to RW of receiving NG tube feeding at home

The family submitted that the judge’s overall analysis of RW’s best interests was flawed.

The Court of Appeal will only allow an appeal where the decision of the lower court is found to be either wrong in law or fact or the decision is unjust because of a serious procedural or other irregularity.

Sharp LJ emphasised that in sensitive and difficult cases such as this the Appeal Court should be slow to conclude that a best interest’s decision taken at first instance was wrong if the judge has directed themselves correctly as to the law (as per Aintree v James [2013] UKSC 67 para 42].

The Appeal Court concluded that Parker J had correctly directed herself as to the law when determining RW’s best interests. In particular she had (in accordance with s.4 (6)(a) and (b) of the Mental Capacity Act 2005) identified the importance of attempting to ascertain what RW’s wishes and feelings would have been. She reminded herself that, in the absence of sufficient evidence, it is wrong to speculate as to what RW would have wished or wanted. Parker J had found no express indication by RW, at a time when he had capacity, of what his wishes as to continuation of CANH would have been in the circumstances that he now found himself in. She had, as required by s.4 (7) MCA 2005, also taken into account the views of RW’s family about his outlook on life, the fact that he was a public spirited person with strong opinions but that did not provide clear evidence of what RW’s views and wishes would have been.

Jackson LJ, offered the following words of caution:

As a society, we rightly treat life as precious, but the ultimate purpose of our existence cannot be to live as long as we possibly can, regardless of suffering and indignity. Even for those who see illness and death as a battle, the true mark of a ‘fighter’ will sometimes be the courage to accept that treatment can no longer bring benefits. Where a person cannot speak for himself, his family members and carers are often an invaluable source of information about his values and his best interests. At the same time, the illness of a loved one is a harrowing experience for the relatives themselves. It is important that the strength and conviction of their views is not allowed to detract from a steady appreciation of the welfare of the individual concerned.

In considering whether Parker J had taken the correct approach, Jackson LJ concluded:

I do not accept that she gave inadequate weight to the wishes and feelings, beliefs and values of RW. She carefully considered the views of his sons, but she did not translate these into a requirement for treatment that was medically inappropriate. This was a conclusion she was fully entitled to reach on the evidence before her.

The Appeal Court was also satisfied that Parker J had carefully considered the risks associated with NG tube feeding at home and whether those risks could be managed by the family. She had concluded that ‘[the sons’] commitment is wholly commendable. However, their proposed regime is untried and untested and many things could go wrong’.

Permission to appeal was refused. The order of Parker J that it was in RW’s best interests for CANH to be withdrawn stood.

Comment

This case demonstrates the high threshold that needs to be overcome in order to successfully challenge a decision made by a judge at first instance as to best interests, especially where there is no finding that the judge misdirected themselves as to the law.

It seems ironic that despite all parties having been in agreement that it was in RW’s best interests to be discharged home (the family stated in evidence that RW strongly disliked being in hospital), the dispute between the family and the Trust resulted in RW being in hospital for months longer than necessary.

The other irony, which was not lost on Sharp LJ, was that were RW to be discharged home with an NG tube in situ the tube would need to be replaced in hospital every 4-6 weeks even if it hadn’t become dislodged. There was, she said, no evidence that hospital clinicians would be willing to replace it. The court cannot compel clinicians to treat a patient contrary to clinical judgment. It was felt unlikely that the family would actually bring RW back into hospital given the history. Sharp LJ therefore doubted that the family’s preferred option could ever have been achieved in practice.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update: The Government responds to Law Commission proposals for reform of the Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) were introduced in England and Wales as an amendment to the Mental Capacity Act 2005 (MCA) and came into force in April 2009.  DoLS provide legal safeguards for individuals who are deprived of their liberty and lack capacity to consent.

When the House of Lords undertook post legislative scrutiny of the MCA in 2014 it found that DoLS were ‘not fit for purpose.’  This coincided with the Supreme Court decision in Cheshire West (setting out the ‘acid test’ for a deprivation of liberty) which brought about an exponential rise in DoLS applications. In response to this the government asked the Law Commission to review DoLS and produce proposals for their reform. After a lengthy public consultation period the Law Commission published a report in March 2017 setting out its recommendations for a replacement scheme called the Liberty Protection Guidelines (see our legal update dated 27/03/17).

The government has now published a formal response to the Law Commission’s report accepting the majority of the Law Commission’s recommendations. No timescale is given for the introduction of legislation despite the government acknowledging that the current DoLS scheme needs to be replaced ‘as a matter of pressing urgency’. The government response concludes by stating ‘we will legislate on this issue in due course. However, before the introduction of any new system, we will need to consider carefully the detail of these proposals and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.’

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update: BMA/RCP/GMC publish interim guidance on the withdrawal of clinically assisted nutrition and hydration (CANH)

The General Medical Council, Royal College of Physicians and the British Medical Association have jointly published interim guidance on decisions to withdraw CANH from patients in permanent vegetative state (PVS) or minimally conscious state (MCS) following sudden-onset profound brain injury. This is intended as supplementary guidance in response to recent developments in the law in England and Wales.

This link will take you to the new guidance.

This interim guidance has been published in response to a series of court judgments this year, the impact of which is that it is no longer necessary for clinicians to seek court approval before CANH can be lawfully withdrawn from patients in PVS or MCS providing existing professional clinical guidance has been followed and all relevant parties are in agreement that it is not in the patient’s best interests to continue CANH. Please refer to our legal update dated 9th October 2017 regarding the case of M v A Hospital.

The interim guidance is intended to remain in place until new, more comprehensive, guidance is published by the BMA in May 2018.

A summary of the supplementary guidance is as follows:-

  1. Clinicians must establish whether there actually needs to be a best interests decision:-
  2. Is there a valid and applicable advance decision to refuse treatment covering CANH? If so, a patient’s decision must be respected.
  3. Has the patient appointed a health and welfare attorney under an LPA enabling the attorney to consent to or refuse life-sustaining treatment? If so the attorney’s decision must be followed unless overruled by the court.
  4. Where there is disagreement about whether withdrawal of CANH is in a patient’s best interests or if the decision is finely balanced, an application should be made to the court for a determination.

On the basis of current law, in all other cases the clinical team can lawfully withdraw (or not provide) CANH where after proper consultation it is determined that it is not in the patient’s best interests.

  1. Proper consultation requires the following steps to be taken:-
  2. Ensure that RCP guidance regarding assessment of responsiveness, awareness , prognosis etc is followed.
  3. Consult and follow MCA code of practice when assessing best interests.
  4. Convene formal best interests meetings with interested parties to share clinical information and to elicit information about the patient’s values wishes feelings and beliefs in order to decide whether continuation of CANH is in their best interests.
  5. Attempt to identify and consult with all relevant people (not just ‘next of kin’) – this might include other family members, friends, colleagues & care staff who know the patient well.
  6. Appoint an IMCA if the patient has no known family (or anyone else) to represent their views or if clinicians feel that the family are not properly able to represent the patient’s views.
  7. Find out as much as possible about the patient’s values, wishes and feelings and beliefs both generally and as they relate to their current situation.
  8. Seek a second clinical opinion from a consultant with experience in prolonged disorders of consciousness who has not been involved in the patient’s care (and ideally external to the NHS Trust).
  9. Keep detailed records of all discussions, meetings, advice sought, and clinical assessments undertaken.
  10. If all parties agree that it is in the patient’s best interest to continue with CANH, this decision should be subject to regular review in line with RCP guidelines.
  11. If all parties agree that it is not in the patient’s best interest to continue with CANH, it should be discontinued as soon as is reasonably practicable in accordance with a detailed plan for withdrawal and end-of-life care. A palliative care plan should be implemented in accordance with RCP guidance.
  12. The death certificate following withdrawal of CANH should give the original brain injury as the primary cause of death. Depending on the cause of the brain injury, referral to the coroner may or may not be required.

Comment 

This interim guidance only covers withdrawal of CANH from patients in PVS or MCS. The BMA has promised more in-depth guidance next spring on good clinical and professional practice for making decisions about CANH generally.

The interim guidance emphasises the necessity for proper consultation and robust decision-making. It recognises the importance of establishing and considering the patient’s wishes, feelings, beliefs and values when making a best interests decision about withdrawing CANH and the need to follow relevant professional guidance when carrying out clinical assessments.

Where, following comprehensive clinical assessment and a robust decision-making process, there is agreement between clinicians, family and other interested parties that withdrawal (or withholding) of CANH is in the patient’s best interests, then as the law as presently stands, it is lawful for clinicians to withdraw or withhold that CANH without the need  for a court declaration.

Where, however, there is disagreement either about the patient’s prognosis, or about whether it is in their best interests withdraw/withhold CANH, or where the decision is finely balanced, then the law still requires that an application is made to the Court of Protection for a declaration as to whether the continuance of CANH is in the patient’s best interests.

This interim guidance is based on the law as it currently stands. If, as is anticipated, the Supreme Court is asked to rule on whether withdrawal of CANH from patients in PVS/MCS requires court permission then the law may change. Watch this space.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Compensation paid by hospital for breach of advance decision

Prior to suffering a stroke, Brenda Grant had drawn up an advance decision (otherwise known as a ‘living will’) refusing life sustaining treatment in specified circumstances should she at some point in the future lose capacity to make decisions about her medical treatment. It was said that she feared degradation and indignity more than death having seen her own mother lose independence through dementia. Mrs Grant did not notify her family about the existence of her advanced decision but her GP was aware and her local hospital, George Eliot, was provided with a copy.

Following a catastrophic stroke in 2012, which left her unable to walk, talk or swallow, Mrs Grant was admitted to George Eliot Hospital in Nuneaton. A copy of her advance decision was contained within her hospital records but over the subsequent months it was misplaced and was consequently overlooked. After three months in hospital, Mrs Grant was fitted with a PEG to enable her to be fed directly into her stomach, before being discharged to a nursing home.

Mrs Grant’s family were unaware of the advance decision until they were alerted by Mrs Grant’s GP shortly before her readmission to hospital. The family then requested that the hospital respect Mrs Grant’s advance decision and withdraw the treatment which was artificially sustaining her life. The hospital agreed and treatment was withdrawn and Mrs Grant’s died on 4 August 2014 aged 81. By this time, Mrs Grant had been kept alive by artificial nutrition and hydration for nearly 22 months contrary to the wishes set out in her advance decision.

The family brought a claim for damages against George Eliot Hospital NHS Trust arising from their failure to follow Mrs Grant’s advance decision. The Trust issued an apology and damages were agreed in an out-of-court settlement of £45,000. Apparently, the advance decision was contained within an old volume of medical records and had therefore gone unnoticed by medical staff. Following Mrs Grant’s death the Trust have set up a new system for recording advanced decisions on the front page of patient notes.

This is thought to be the first case where a claim for negligence has been brought against medical professionals for failing to follow an advance decision.

Comment

This case highlights the importance of NHS Trusts and other health and social care providers ensuring that advance decisions are properly documented in patient records so that they are readily brought to the attention of treating health professionals. It also highlights the importance of a person who has made an advance decision bringing it to the attention of family members. Had Mrs Grant’s family been aware of the existence of the advance decision they could have ensured that the hospital acted in accordance with their mothers wishes from the outset.

What is an advance decision to refuse medical treatment?

  • An advance decision is often referred to as ‘living will’.
  • An advance decision enables an adult, while they still have mental capacity, to refuse specified medical treatment at a time in the future when they may lack capacity to decide and/or are unable to communicate their wishes.
  • An advance decision will only take effect when the person who made it has lost capacity to consent to or refuse the specified medical treatment.
  • An advance decision can be verbal or in writing. The latter is always advisable in order to avoid any future uncertainty over its validity. An advance decision to refuse life-sustaining treatment must however be in writing, signed and witnessed and must clearly state that the decision is to apply even if life is at risk.
  • An advance decision can be used to refuse life-sustaining treatment including cardiopulmonary resuscitation (CPR), ventilation, antibiotics for life-threatening infection or artificial nutrition and hydration.
  • A valid and applicable advance decision to refuse treatment has the same legal status as a decision to refuse treatment made by a person with capacity at the time of that treatment. It is legally binding and must be respected.
  • Healthcare professionals must follow an advance decision if they are satisfied that it is exists, is valid and is applicable to the patient’s circumstances. Failure to follow an advance decision in this situation could lead to a claim for damages for battery or a criminal charge of assault.
  • Healthcare professionals will be protected from liability, if prior to treating the patient, they take all practical and appropriate steps to find out if the person has made an advance decision, and do not know or are not satisfied that a valid and applicable advance decision exists, and they proceed to treat.
  • Healthcare professionals should not delay emergency treatment to look for an advance decision if there is no clear indication that one exists. But, if it is clear that a person has made an advance decision that is likely to be relevant, healthcare professional should assess its validity and applicability as soon as possible – sometimes the urgency of treatment decisions will make this difficult.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update: The Court of Appeal reverses the law on deprivation of liberty for 16 & 17 year olds

In the matter of D (A Child) [2017] EWCA Civ 1695: The Court of Appeal rules that parental consent can be relied upon to render lawful the confinement of a 16 or 17 year old in circumstances which would otherwise amount to a deprivation of liberty.

Background

The detailed background to the case is contained within our legal update dated 30th January 2017. D was a young person with ADHD, autism, Tourette’s and learning disabilities. His case came before the court when he was 15, then again when he turned 16. The issue was whether parental consent (via the exercise of parental responsibility) to D’s confinement, initially on a psychiatric unit and subsequently in a residential placement, prevented a deprivation of liberty arising. D was under continuous supervision and control  and not free to leave (the ‘acid test’ for a deprivation of liberty) and lacked capacity to consent to his confinement.

The case first came to court in 2015 when D was aged 15. Mr Justice Keehan, taking into account D’s autism and other conditions, held that parental consent to D’s confinement did amount to an appropriate exercise parental responsibility. That consent meant that D was not deprived of his liberty and, as such, Article 5 safeguards were not required

The case came back before Mr Justice Keehan in 2016. The question for the court was whether, now that that D was 16, parental consent could still be relied upon to authorise D’s confinement in circumstances which would otherwise amount to a deprivation of liberty? Mr Justice Keehan concluded that it could not. He stated that the law treats 16 & 17 year olds differently to those under 16 – most notably the Mental Capacity Act, which includes 16 & 17 year old within its remit.  As such, he declared that the exercise of parental responsibility did not entitle parents to consent to a young person’s confinement, irrespective of whether the young person lacked capacity to consent to that confinement themselves.

This second judgment was extremely controversial. It meant that any confinement of a young person in circumstances which would otherwise meet the “acid test” now required court authorisation in order to prevent an unlawful deprivation liberty arising. Parental consent could no longer be relied upon. The standard DoLs authorisation process could not be utilised as it only applied to those 18 and over. This judgment had huge implications, particularly for local authorities, with justifiable concern that they would be required to bring to court a large number of cases in which children age 16 and 17 were confined in residential placements.

Not surprisingly, the local authority in appealed.

The Court of Appeal’s Decision

Lord Justice Munby, giving the leading judgment, allowed the local authority’s appeal. He held that there is no dividing line which distinguishes 16 and 17-year-olds from those under 16 when it comes to the exercise of parental responsibility. Parental responsibility can in principle be exercised up until a young person turns 18 if, for whatever reason, they lack ‘Gillick capacity’ (otherwise known as ‘Gillick competence’). As a result, although D’s confinement satisfied the “acid test”, he was not deprived of his liberty because his parents were able to give valid consent. Consequently judicial safeguards were not required.

Lord Justice Munby found that there is no ‘magic’ in the age of 16 when it comes to the exercise of parental responsibility. Gillick capacity is ‘child specific’ – one child may have attained Gillick capacity by the age of 15 whereas another may not have acquired it even by the age of 18. The impact of the appeal judgment is that parental consent can be relied upon to authorise the confinement of a 16/17 year old providing that falls within the “zone” of parental responsibility. When ascertaining the “zone” of parental responsibility in any given case Lord Justice Munby stated that the question to ask is whether the restrictions being imposed by a particular parent in a particular case fall within ordinary acceptable parental restrictions upon the movements of a child in contemporary Britain.

Comment

This well-reasoned common sense judgment will be welcomed by local authorities who can once again, in the majority of cases, safely rely upon parental consent to the confinement of a child or young person (who lacks Gillick competence) in circumstances which would otherwise amount to a deprivation of liberty. The proviso here is that the restrictions being imposed must fall within the “zone” of parental responsibility in order for that parental consent to be valid.

Had D been objecting to his confinement we suggest that the Court of Appeal may well have reached a different decision. The greater the degree of coercion required to confine a young person, the more likely it is that the decision to confine falls outside the zone of parental responsibility and as such judicial safeguards will be required in order to prevent an unlawful deprivation of liberty.  Therefore caution should be exercised when deciding whether to rely upon parental consent in these circumstances. The Mental Health Act Code of Practice at 19.41 provides a useful source of guidance on what factors to consider when determining if a decision falls within the zone of parental responsibility.

Therefore the law, as it currently stands, appears to be as follows:-

  1. Under 18’s who lack capacity/Gillick competence to consent to their confinement Parents can give valid consent providing that is an appropriate exercise parental

responsibility.

  1. Under 18’s who have capacity/Gillick competence to consent but who object to their confinement

Parental consent cannot be relied upon. Article 5 safeguards are required (court    authorisation or MHA)

  1. Under 18’s subject to an interim or final care order who lack capacity/Gillick competence to consent to their confinement

Neither the parents nor the local authority in the exercise of shared parental responsibility (pursuant to an interim or final care order) can give valid consent. Article 5 safeguards are required (court authorisation or MHA). N.B. the Appeal Court judgment was not required to address this specific issue so the previous law continues to apply.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

[We understand that this decision is likely to be appealed to the Supreme Court – we will post a further legal update if the law changes – 26/02/2018.]

Legal Update – When to go to court before…

Legal Update – When to go to court before withdrawing artificial nutrition & hydration from patients in a minimally conscious or permanent vegetative state.

M v A Hospital [2017] EWCOP 19: This judgment considered whether legal proceedings are necessary when there is agreement between the patient’s family and her clinicians that clinically assisted nutrition and hydration is no longer in the patient’s best interests and should be withdrawn. The judge concluded that they were not.

The Facts

This case concerned M, a patient who was in a minimally conscious state (MCS) and had been receiving clinically assisted nutrition and hydration (CANH) to keep her alive. M suffered from Huntingdon’s Disease – an inherited neurological condition that is progressive, incurable and ultimately fatal. There was agreement between M’s family and her clinicians that CANH was no longer in her best interests and should be withdrawn.

Court of Protection Practice Direction 9E (Applications Relating to Serious Medical Treatment) directs that decisions about the proposed withholding or withdrawal of CANH from a person in a permanent vegetative state (PVS) or MCS should be brought to court. Therefore M’s mother, as her litigation friend, applied to the court for a judicial determination of whether it was in was in M’s best interests for CANH to be withdrawn with the inevitable consequence that M would die.

The Court’s decision

After hearing evidence from M’s mother, husband, treating clinicians and an independent specialist in Huntington’s disease the court was satisfied that it was no longer in M’s best interests for her life to be artificially continued by CANH and that it should be discontinued and replaced by palliative care.

The court then went on to consider whether, having regard to Practice Direction 9E, legal proceedings were in fact necessary in a case such as M’s, where all parties are in agreement that withdrawal of CANH is in the patient’s best interests. The court concluded that there was no legal requirement for a decision, made in accordance with prevailing professional guidance, to withdraw CANH to be taken by the court.  The Mental Capacity Act 2005 makes no such requirement – on the contrary a best interests decision to withdraw CANH can be taken pursuant to s.5 of the Act without judicial involvement. Therefore, notwithstanding Practice Direction 9E, the decision about what was in M’s best interests was one that could lawfully have been taken by her treating clinicians, in consultation with her family, and a court application had been unnecessary.

The court acknowledged that court intervention may still be required in rare cases i.e. if there is disagreement between the parties as to whether the withdrawal is in the patient’s best interests.

In reaching this decision the court stated that consideration must be given to the deterrent effect of costly and time-consuming proceedings and that ‘a mandatory litigation requirement may deflect clinicians and families from making true best interest decisions and in some cases lead to inappropriate treatment continuing by default’. It is notable that, prior to the application being made,  M’s CANH had continued for over a year after the clinicians and family had agreed that it ceased to be in her best interests.

Comment

This decision follows on the tail of obiter comments made by the Court of Appeal in the recent case of Briggs that cases concerning the withdrawal of CANH from patients in PVS or MCS need only be brought to the court if there is disagreement or doubt as to whether it is in the patient’s best interests.

Earlier this year the Court of Protection Rules Committee recommended removing the current Practice Direction and the setting up of a multidisciplinary working group to formulate guidance about the circumstances in which cases should and should not be taken to court. Therefore Practice Direction 9E is likely to be withdrawn and new guidance issued in its place.

The decisions in M v a Hospital and Briggs provide welcome clarity about the circumstances in which a court application is necessary. Pending new guidance from the Court of Protection, our current advice to NHS Trusts and clinicians is that there is no requirement for a court application to be made for withdrawal of CANH from PVS/MCS patients unless there is doubt or disagreement as to whether that withdrawal is in the patient’s best interests. If  clinicians are in any doubt they should take legal advice particularly given the judge’s caveat that ‘every case is intensely fact specific, and those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to them to be right to do so.’

If you have any questions or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update: The Court of Appeal rules that MCA S.21A cannot be used as a vehicle for challenging medical treatment decisions

Director of Legal Aid Casework et al v Briggs [2017] EWCA Civ 1169 The Court of appeal overturns Court of Protection decision allowing a challenge to the continuance of life-sustaining treatment to be considered within the scope of (non-means tested legal aid funded) MCA s.21A proceedings – thus closing a potential loophole which would have enabled applicants to secure legal aid funding for what are essentially serious medical treatment rather than deprivation of liberty challenges.

Background

The case of Briggs v Briggs came before Mr Justice Charles in the Court of Protection on two occasions in 2016. We reported on the judgment concerning the continuance of life sustaining treatment in our legal update dated 06/02/17. Mr Briggs was in a minimally conscious state and his wife issued an application in the Court of Protection essentially to obtain a determination on whether it was in her husband’s best interests for life sustaining treatment to continue (her view being that it wasn’t).

There had been an earlier hearing before Charles J to address a preliminary issue of whether the proceedings issued by Mrs Briggs were properly brought under s. 21A of the Mental Capacity Act 2005 (MCA) – a procedure for challenging a deprivation of liberty safeguards (DoLS) authorisation. Mr Briggs was subject to a DoLS authorisation in hospital and his wife was his appointed Relevant Persons Representative (RPR).

Mrs Briggs had brought an application under s.21A to challenge her husband’s DoLS authorisation as a means of obtaining a declaration as to whether it was in his best interests to be kept alive by clinically assisted nutrition and hydration (CANH). Crucially, a s.21A application entitled Mrs Briggs to non-means tested legal aid to fund legal representation. No such funding is available to an applicant making a conventional ‘serious medical treatment’ application under s. 16 of the MCA. It was for this reason that Mrs Briggs issued her application under s.21A rather than s.16.

The Legal Aid Agency, Official Solicitor and Secretary of State opposed the use of a s.21A application for what was essentially a best interests determination about medical treatment rather than about liberty and, as such, they argued would not be eligible for non-means tested legal aid. Charles J disagreed. He concluded that Mrs Briggs had properly brought proceedings under s.21A and that it was entirely proper for the Court of Protection to consider whether continuation of CANH was in Mr Briggs’ best interests when discharging its functions under s.21A. Therefore the case proceeded to a substantive best interests hearing with Mrs Briggs having the benefit of legal aid funding. On 20th December 2016 the judge held that it was not in Mr Briggs’ best interests to continue to receive CANH and he died in a hospice in January 2017.

This judgment had significant implications for legal aid funding in s.21A applications and perhaps not surprisingly the decision was appealed by the respondents.

Court of Appeal Judgment

In the leading judgment given by Lady Justice King, the Court of Appeal overturned Charles J’s decision on the s. 21A preliminary issue. She made clear at the outset that the case before the court was not about the availability of legal aid funding stating ‘[w]hilst it will undoubtedly be regarded by many as perturbing that non-means tested legal aid is unavailable to people making an application to the court in circumstances where a dispute has arisen in respect of the withdrawal of life sustaining treatment, the case before this court is not about legal aid, but solely about the scope of s. 21A MCA’.

King LJ dismissed Charles J’s suggestion that s.21A not only relates to decisions about deprivation of liberty but also the circumstances which lead up to the deprivation of liberty. On the contrary, she declared that the conditions which need to be met in order to satisfy the  best interests requirement for a DoLS authorisation under Schedule 1A para 16 relate directly to whether it is necessary, proportionate and in P’s best interests to be detained. She elucidated as follows:-

[A] question in relation to serious medical treatment is not fundamentally a question in relation to deprivation of liberty. The issue before the court, as was accepted by the judge, was whether P should or should not be given certain medical treatment. It may be that following the making of such a decision there will be implications in relation to P’s liberty as was recognised by the judge. For example : there may have to be a deprivation of liberty to prevent a woman from leaving the labour ward in circumstances where she lacks capacity and refuses a caesarean section which is clinically indicated in her best interests. In my view, in such circumstances, the deprivation of liberty is secondary. The real question is whether or not it is in her best interests to have the surgery, whether or not it is in her best interests to be deprived of her liberty is then determined against the backdrop of the decision in relation to the proposed serious medical treatment. In my judgment that makes the appropriate application an application made under s.15 – s.17MCA and not an application under s.21A.

However, King LJ acknowledged that there are many issues relating to a deprivation of liberty which need appropriately to be considered by the DoLS best interests assessor and which may be reflected in recommendations for conditions to be attached to the DoLS authorisation. She gave as an example an application relating to the wish of P and P’s family to live at home set against a DoLS best interests assessor’s view that it is in P’s best interests to reside in a care home where P will consequently be deprived of his liberty.  King LJ points out that such cases require a more extensive consideration of the relevant circumstances than simply ensuring that a care plan and needs assessment are in place without further consideration of their content. However she acknowledged that a DoLS best interests assessor has neither the expertise nor the facilities to carry out the intense scrutiny necessary to reach a conclusion as to whether or not it is in P’s best interests to have a particular medical treatment and neither is such a decision necessary in order to decide whether a DoLS authorisation is in P’s best interests. It is not for the best interests assessor to engage in the merits of a dispute as to whether, as in Mr Briggs case, treatment should or should not be withdrawn.

It is important to note that the Court of Protection decisions in Briggs were superceded by the Court of Appeal decision in Ferreira v HM Senior Coroner for Inner South London & Others [2017] EWCA Civ 31 which we reported on in our legal update dated 27/01/2017. In Ferreira it was held that the administration of life-saving treatment does not, in general, give rise to a deprivation of liberty. In Briggs King LJ acknowledged the significance of this decision:-

[F]or my part, I find it hard to see how an argument could now be framed to the effect that Mr Briggs was being deprived of his liberty during the months he was in hospital and being cared for in a minimally conscious state. That being so, no standard [DoLS] authorisation was necessary and, as a consequence, the only available application open to the respondent [Mrs Briggs] in relation to the withdrawal of CANH should have been through the conventional s.16 route.

The Court of Appeal set out helpful guidance post Ferreira on the proper approach to be adopted where the central issue is medical treatment:-

  1. If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P’s best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 MCA
  2. If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under sections 15-17 MCA.
  3. Where, as a consequence of receiving life saving treatment, P is unable to leave hospital, that is not a deprivation of liberty which falls foul of Article 5(1). A standard authorisation is not therefore required and any application in relation to treatment will properly be made under s.16 MCA.
  4. If, as a consequence of ensuring that P receives the treatment that is in his or her best interests, P will become subjected to a deprivation of liberty of a type that falls within Article 5(1), then there must be authorisation for that deprivation of liberty:
  5. If already in hospital or in care. under Schedule A1 (or S4A(5)): or
  6. Pursuant to a court order under section 4A(3) MCA
  7. The Sch. A1 decision will be made pursuant to para. 16 on the basis that the proposed deprivation of liberty is in P’s best interests, necessary and proportionate; conditions of the type envisaged by the DOLS Code of Practice can be recommended if necessary.
  8. If there is a disagreement as to whether there should be a standard authorisation, or in relation to the conditions attached to such an authorisation, then the matter can be brought to by way of an application under s.21A to determine any question relating to the authorisation and to make any appropriate order varying or terminating the authorisation. Clinical issues in relation to treatment will remain in the hands of the treating physicians.

Comment

Mrs Briggs decision to issue her application under s.21A instead of the conventional s.16 approach was motivated by the availability of non-means tested legal aid for the former which was not available for the latter.  As a consequence Mrs Briggs benefitted from representation at court by both leading and junior counsel and was able to fully participate in the proceedings concerning her husband. Given the complex legal issues involved in a case of this type Mrs Briggs would undoubtedly have struggled to put her case before the court without legal representation .

Nevertheless, the Court of Appeal made clear that the case before the court was not about the availability or otherwise of non-means tested legal aid – but was about the scope of s. 21A. Clearly Mrs Briggs would not have been able to bring her application under s.21A had her husband not been subject to a DoLS authorisation while in hospital – so it was fortuitous for her that he was. Post Ferreira it is  now clear that in  cases like that of Mr Briggs, where a patient is unable to leave hospital due to their physical condition and the life-saving treatment they are receiving,  no deprivation of  liberty will generally arise and no DoLS authorisation will be required.

The wider issue of whether non-means tested legal aid should be made available to patients and/or their families to bring a serious medical treatment dispute (such as the withdrawal of life sustaining treatment) before the court was barely touched upon by the Court of Appeal although King LJ did acknowledge that many would be perturbed to know that non-means tested legal aid was unavailable in such circumstances.

This case serves to demonstrate the injustices that exist concerning the availability of non-means legal aid to families of incapacitated adults (and indeed parents of young children) who wish to bring a serious medical treatment disputes before the court or having been joined as a party in such proceedings, wish to be able to participate fully.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal update: deprivation of liberty in intensive care

R (on the application of Ferreira) v HM Senior Coroner for Inner London South UKSC 2017/0036 – Supreme Court refuses permission to appeal.

Following our legal update posted on 27/1/17 reporting on the judgment of the Court of Appeal in this case,  the Supreme Court has refused the Ferreira family permission to appeal. This means that the Court of Appeal judgment in Ferreira is binding authority.

Consequently, in the vast majority of cases, a deprivation of liberty (DoL) will not arise as a consequence of treatment in an Intensive Care setting or indeed any hospital setting where urgent life-saving medical treatment is being administered. This will come as welcome news to ICU staff who will now, save in exceptional cases, be spared the administrative burden of making DoLS referrals for patient’s in ICU whose life-saving treatment is the sole reason why there are, technically speaking, ‘not free to leave’ the unit.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.

Legal update – Court of Protection best interests decision and the observance of religious custom & practice

Re: IH (Observation of Muslim Practice [2017] EWCOP 9: Court of Protection provides guidance on best interests decision-making concerning observance of religious custom and practice

The Facts

IH is a 39 year old man with profound learning disabilities who resides in a supported living environment. He is of Pakistani origin and has been raised by his family in the Muslim faith. He spent the first 35 years of his life at home in the care of his family (described as devout followers of Islam). When living at home he participated, to the extent he was able, in the family’s religious practices and observances although he had no real appreciation of the religious significance of the rituals. IH moved into Local Authority supported housing in 2013 under a CCG funded care package. The Local Authority recognised the importance of facilitating IH’s religious observance albeit the care home was not culturally aligned to the Muslim faith and nor were this carers of that faith.

This case focused on two specific aspects of Islamic practice, namely, fasting during Ramadan and the removal of pubic and underarm hair. The Court of Protection was required to consider the extent to which observance of these practices was in the best interests of IH, who lacked capacity to make those decisions for himself.

There were two applications before the court:-

  1. An application by the Official Solicitor (acting for IH) for a declaration that it was not in IH’s best interests for him to fast during Ramadan
  2. An application by IH’s father for a declaration that it was in IH’s best interests for his pubic and underarm hair to be trimmed in accordance with Islamic practice (insofar as it was safe and reasonable to do so).

The court heard evidence from an expert in Islamic studies who explained that a legally incompetent person under Islamic law is perpetually in a heightened state of spirituality and therefore exempt from practising the major rituals of Islam including fasting during Ramadan. The trimming or removal of pubic and underarm hair is recommended practice for legally competent Muslims, but is not obligatory.

The first application was not contentious. All parties (including IH’s father) agreed that IH should not be expected to fast during Ramadan, indeed IH had never been expected to fast when he had been living with his family. The court heard that IH would not understand why food and liquid was being withheld during daylight hours. The absence of food and liquid would be likely to cause him distress which might in turn trigger irritable and/or aggressive behaviour thus increasing the risk to both himself and to his carers.

The second application was opposed by the Official Solicitor and the CCG. While living at home IH’s father had taken responsibility for his pubic/underarm hair trimming but after IH moved into supported living this fell into abeyance. IH’s father contested that it was his son’s ‘right’ to have this religious ritual performed and that if IH had capacity he would probably have performed it himself. As it had been over three years since IH had been subjected to hair removal, his carers expressed concern that if they were to perform the procedure he would suffer stress and could become agitated and aggressive resulting in injury to himself or to staff.

The position of the Official Solicitor, representing IH, was that whilst recognising the religious significance of the hair trimming procedure for a person with capacity, as IH lacked capacity, there was no religious obligation for him to undergo the procedure and there was a risk that either IH or others would be harmed if hair trimming was attempted.

The court’s decision

Mr Justice Cobb was satisfied that it was not in IH’s best interests to fast during Ramadan and, with the consent of all parties, granted the declaration sought by the Official Solicitor.

The best interests decision regarding the trimming of pubic/underarm hair was subject to a more detailed best interests analysis. The fact that IH lacked capacity to make this decision himself was not disputed. Cobb J considered the statutory guidance within the Mental Capacity Act 2005 (MCA) as well as the Supreme Court guidance in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67.

Reciting MCA s.4, Cobb J acknowledged that in determining IH’s best interests he was required to have regard to a wide range of relevant circumstances including:-

  • IH’s past and present wishes and feelings;
  • the beliefs and values that would be likely to influence his decision if he had capacity;
  • the other factors that he would be likely to consider if he were able to do so; and
  • the views of his family and his carers.

Cobb J also relied upon the Supreme Court guidance in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 namely that :-

  • the best interests test should contain a strong element of substituted judgment – the preferences of the person concerned are an important component in deciding where his best interests lie
  • the person’s best interests should be considered in a holistic way
  • decision-makers must look at the person’s welfare in the widest sense – not just medical but also including social and psychological
  • the purpose of the best interests test is to consider matters from the person’s point of view – but that is not to say that his wishes must prevail.

Cobb J stated that health and social care bodies, when making arrangements for the care of adults who lack capacity, own an obligation, so far as is reasonably practicable and in the interests of the individual, to create a care environment and routine which is supportive of their religion and which facilitates their access to and observance of religious custom and ritual (this is consistent with Article 9 ECHR). They (and the court) must, when making best interests decisions on behalf of someone who lacks capacity, take into account their reasonably ascertainable beliefs and values which would be likely to influence their decision if they had capacity, including relevant religious beliefs and values.

Based on the evidence heard from the expert in Islamic Studies, Cobb J was satisfied that there was no Islamic religious obligation on IH to trim or remove his pubic/underarm hair, or any obligation on his carer to do so on his behalf. He was also satisfied that IH derived no religious benefit from undergoing this ritual as he could not understand its religious significance. Although Cobb J accepted the father’s view that if IH had capacity he probably would have observed this custom, this was not a relevant factor given that, as an incapacitated person, he was exempt from observing the ritual in the first place. IH was not able to express any reliable view on the issue himself – therefore this was not a case where reference could be made to IH’s previous wishes and feelings as his disability had been lifelong.

While Cobb J carefully considered the views of the family and attached significant weight to those views, he noted that IH’s father had not himself taken an absolute view of religious observance for IH in the past. His father recognised that in some important respects it was impractical for IH to follow the Islamic faith where the disadvantages of observance of certain religious ritual outweighed the advantages. Cobb J was also reassured that IH’s family and his wider community would not think less favourably of IH if the hair trimming was not undertaken given that it had not been undertaken for the last three years and there was no discernible change in the family’s attitude towards him.

After carefully weighing all of the above, Cobb J expressed that he was anxious to spare IH the additional stresses to his life from hair removal (a procedure which IH neither understood the religious significance of nor derived any religious benefit from) and wanted to protect him and the staff from an avoidable risk of harm. Cobb J concluded that it was not in IH’s best interests for his pubic or underarm hair to be trimmed.

Key points arising from this case

Care providers and commissioners should:-

  • ensure that care packages for persons lacking capacity facilitate observance of their religious customs/rituals where it is reasonably practicable to do so.
  • ensure that religious customs/rituals are assessed to ensure that there is a benefit to the incapacitated adult balanced against any avoidable risks associated with the ritual to both them and their carers.
  • ensure that religious customs/rituals are a assessed on their merits in each individual case – every case will turn on its own facts and the risks and benefits associated with a particular custom/ritual will vary from case to case.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.

Legal update – court of protection best interests decisions & the weight to be attached to delusional beliefs

NHS Foundation Trust  v QZ [2017] EWCOP 11

In this case the Court of Protection revisits the issue of the weight to be attached (if any) to the delusional beliefs of a person lacking capacity when best interests decisions are being made on their behalf.

The Facts

QZ was a patient in her 60’s with a long-standing diagnosis of paranoid schizophrenia. Her most pervasive delusions were that she was a young Roman Catholic virgin who had been sexually abused in the past. She felt herself at risk of being poisoned or raped by her carers or doctors. Her views were vigorously held and had endured over most of her adult life. QZ resided in a care home which provided long-term care for adults with mental health needs. She was reported to be happy and settled there albeit she would react badly if she perceived that her autonomy was under threat.

QZ lacked capacity to make decisions about her medical treatment.

Approximately 12 months prior to the hearing QZ had developed post-menopausal bleeding and the treating NHS Trust sought an order permitting a hysteroscopy and endometrial biopsy under general anaesthetic with the objective of identifying the cause of her bleeding. Further authorisation was sought for keyhole hysterectomy in the event of an abnormal pathology being identified. Her oncologist felt there was a real risk that this bleeding might indicate a gynaecological cancer. An ultrasound scan had revealed thickening of the endometrium – cancer of the endometrium was suspected. The risk of cancer was evaluated at between 30 and 50%. Although the prognosis following treatment for endometrial cancer was dependent on the stage the cancer had reached, on the whole the prognosis following treatment was encouraging  with an average five year survival rate of between 79% and 82%.

QZ refused to undergo any further investigation. It was therefore acknowledged that a degree of coercion and force would be required to undertake the proposed investigations and treatment if the order was granted.

The Official Solicitor, instructed to represent QZ, opposed the Trust’s application on the basis that, given her delusional beliefs,  the risks posed to QZ’s mental health from undergoing the proposed investigation outweighed any potential benefits of investigating ‘the chance’ that she may have cancer. Evidence was heard from an independent psychiatrist instructed by the Official Solicitor who predicted a serious and potentially prolonged deterioration in QZ’s mental health as a consequence of the proposed medical intervention. QZ’s treating psychiatrist was, however, of the opinion that QZ had sufficient resilience to overcome any mental distress caused by the treatment and, in the longer term, re-gain trust in those caring for her.

Consequently there was a conflict between the potential benefits for QZ’s physical health of undergoing investigation and treatment and the significant deterioration in her mental health which would inevitably result.

The Judgment

Mr Justice Hayden re-stated the established approach to be taken when making best interests which is to look at the question from the assumed point of view of the person to whom the decision relates. In this type of case, best interests involves not only medical best interests but also the patient’s wider social and emotional interests.

The judge emphasised that when identifying where QZ’s best interests lie, in the context of this medical treatment decision, it was not necessary to investigate whether there was any element of truth underlying her delusional beliefs. However he emphasised that:

‘The wishes and feelings of those who suffer from delusional beliefs are not automatically, in my judgement, to be afforded the same weight as the beliefs articulated by an individual who has not had the fortune to possess the powers of objective reasoning and analysis.’

He added  that:

‘The kernel of the issue is that delusional beliefs should never be discounted merely because they are irrational. They are real to the individual concerned. The weight they are to be afforded will differ from case to case and, as always, will fall to be considered within the broader context of the evidence as a whole.’

Although Mr Justice Hayden accepted that QZ would suffer a period of profound mental distress following the proposed medical investigation/treatment he concluded, based on the evidence of her treating psychiatrist, that she had the resilience to recover and had a prospect of many years of life ahead of her. He therefore authorised the proposed investigation and treatment to proceed.

Comment

This case provides a valuable reminder that a person’s delusional beliefs should not be dismissed out of hand in the context of best interests decision-making. Such beliefs must be weighed up in the balance holistically alongside all other relevant factors including medical, psychological and social factors. The weight to be attached to such beliefs will vary from case to case. Although in this case, on the evidence, the judge concluded that the mental distress (derived from QZ’s delusional beliefs) that would inevitably result from the proposed investigation and treatment was not sufficient to outweigh the benefits to her physical health from the same.

Of note, the judge in this case was extremely critical of the 12 month delay in the bringing an application before the court:

‘It is profoundly troubling to me that I am being asked to consider the issues here over 12 months after the serious health concerns became known. I record that I have been provided with no satisfactory explanation for the delay. I re-emphasise that I am concerned with the vulnerable and incapacitous woman.’

This serves as a warning to those involved in the care and treatment of those lacking capacity not to delay in making an application to the Court of Protection when there is a clear indication for court intervention, particularly where delay in making a best interests decision is likely to have a detrimental impact on the patient’s treatment and prognosis.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.

Legal update: Religious objection to medical treatment – when is court intervention required?

It is not uncommon for healthcare professionals to encounter patients who refuse certain forms of treatment on religious grounds. Where that refusal carries with it a significant risk of harm or even death, it can be an extremely distressing for those treating and caring for the patient. Such refusals most frequently arise in the context of Jehovah’s Witnesses whose religious tenets forbid the transfusion of blood and blood products.

It is important that acute hospital trusts have comprehensive policies in place addressing how these situations should be dealt with, when they arise, so that staff know exactly what steps to take and when legal advice should be taken.

The Jehovah’s Witness Hospital Liaison Committee have representatives in most acute hospitals trusts across the country who can provide a support service for both patients and healthcare professionals. They maintain a specialised database of relevant medical papers, articles and abstracts dealing with non-blood management strategies. They can put doctors in touch with specialists in the UK with extensive experience of treating patients to seek alternatives to blood transfusion.

General Principles

Different considerations arise in relation to adults and children, and as between those who have and those who lack capacity to refuse a medical treatment.

Refusals  by competent adults

  • The general rule is that adults with capacity have an absolute right to refuse medical treatment, however seemingly reckless or irrational that decision might appear to be, and even if such refusal puts them at risk of a serious deterioration in their health or even death. The Mental Capacity Act 2005 (MCA) makes clear that a person is not to be treated as lacking capacity to make a decision merely because they make an unwise decision (s.1(4))
  • Therefore, a refusal of medical treatment (including life-sustaining treatment) by a competent adult must always be respected and cannot be overruled by the court. The imposition of invasive medical treatment, no matter how well intentioned, on a competent adult without their consent will amount to assault and can result in those administering the treatment being subject to criminal and civil proceedings.

Refusals by adults lacking capacity

  • Where an adult has been assessed as lacking capacity to make a decision to refuse the proposed medical treatment then, in the absence of a valid and applicable advance decision, the treatment can be administered if it is in their best interests (in accordance with MCA principles). But this is by no means a straight forward process given that the decision-maker must consider the patient’s reasonably ascertainable past and present wishes and feelings and any beliefs and values that would likely influence their decision if they had capacity (s.4(6))
  • Where there is uncertainty as to whether or not the patient has made a valid advance decision to refuse a life sustaining treatment (such as a blood transfusion) this can place healthcare professionals in a difficult position and legal advice should be taken
  • In order to be valid and applicable, MCA s.25(4)-(6) requires that an advance decision to refuse life-sustaining treatment must be in writing, signed by the patient, and witnessed and it must confirm that it is to apply even if the patient’s life is at risk. Advance decisions to refuse other forms of medical treatment do not require these formalities and can be can be either oral or in writing
  • In the absence of reliable evidence of a valid and applicable advance decision, healthcare professionals should not simply assume that because a patient is known to be of a particular religion (i.e. a Jehovah’s Witness) that it necessarily follows that they adhere to all of the religious tenets (such as refusal of blood transfusion). Where there is no evidence of an advance decision, irrespective of the patient’s religion, healthcare professionals should treat the patient in accordance with best interests principles
  • Where there is an indication of a relevant advance decision then (if time allows) careful enquiry should be undertaken to confirm its existence and validity. However, healthcare professionals should not delay in providing emergency life sustaining treatment to look for an advance decision if there is no clear indication that one exists. If there is clear evidence of a relevant advance decision, healthcare professionals should, as soon as possible, assess its validity and applicability, although sometimes the urgency of treatment is such that this will prove difficult to do in advance. Healthcare professionals are unlikely to face civil or criminal sanction if they have acted honestly and in accordance with good medical practice in these circumstances.

Refusals by children and young people

  • Although the law enables a child under 16 who is of sufficient maturity and understanding (Gillick competent) to consent to their own medical treatment, their refusal of treatment can be overridden by parental consent or an order of the court
  • Healthcare professionals are encouraged, where appropriate, to take account of children’s wishes and views in the best interests decision-making process, however, where a child is refusing medical treatment which is likely to result in significant harm or death then it is lawful for healthcare professionals to rely on parental consent. If parental consent is not forthcoming (which is often the case with parents who are Jehovah’s Witnesses) consent can be obtained from the court. Emergency life sustaining treatment should not be delayed pending parental consent or court order if it is deemed to be in the child’s best interests
  • Although there is a statutory presumption that a young person aged 16 or 17 has capacity to consent to their own medical treatment there is no concurrent right to refuse medical treatment. The wishes and views of young people should always be carefully listened to by health professionals and weighed in the best interests decision, but ultimately a young person’s refusal can be overridden by parental consent or by court order if it is deemed to be in their best interests, this is most likely to occur when the refusal relates to life-sustaining treatment
  • Under MCA provisions, a valid advance decision to refuse medical treatment cannot be made by a person under 18 (s. 24(1)).

Refusals by parents on behalf of children

  • Where parental consent is required, a parent has no absolute right to refuse consent to medical treatment on behalf of their child on religious (or any other) grounds where the treatment is deemed to be in the child’s best interests
  • Parental refusal of life sustaining treatment deemed by health professionals to be in the child’s best interests will, almost without exception, be overridden by the court
  • Normally the consent of one parent (with parental responsibility) to the proposed medical treatment will suffice, even if the other objects on religious grounds. The exceptions being sterilisation or male circumcision procedures for which consent of both parents is required, or court authorisation
  • The consent to medical treatment of a Gillick competent child or a young person aged 16/17 cannot be overridden by parental refusal.

When to apply to the court?

In relation to adults:-

  • When there is uncertainty as to whether an adult has capacity to refuse medical treatment which is deemed to be in their best interests
  • When there is uncertainty as to the validity or applicability of an advance decision made by an adult who lacks capacity.

In relation to children and young people:-

  • When parents refuse to consent to treatment on behalf of their child which is deemed by healthcare professionals to be in the child’s best interests, particularly where that refusal places the child at significant risk of harm or even death
  • When there is a disagreement between parents as to whether consent to a proposed medical treatment should be given
  • Where a young person aged 16/17 refuses treatment which is deemed to be in their best interests, particularly where that refusal places them at significant risk of harm or even death and their parents refuse to consent on their behalf
  • Where, even though parental consent has been obtained, a young person aged 16/17 or a Gillick competent child refuses life sustaining treatment, it is always recommended to make an application to the court for a best interests determination if time permits

Practical advice to healthcare professionals – adults

  • A refusal of medical treatment, including life-sustaining treatment, by a competent adult must be respected
  • Attempt to establish a patient’s religion on admission and enquire whether this will impact on their medical treatment. Any refusal of treatment should be documented in the patient records (along with an assessment of their capacity) and signed by the patient if possible. If the refusal relates to life sustaining treatment – it must comply with MCA s.25 formalities in order for it to be valid
  • Where a patient is a Jehovah’s Witness it is important to clarify precisely what medical treatment they are refusing. Not all Jehovah’s Witnesses strictly adhere to the tenets of their religion
  • Care should be taken to ensure that a patient is not under duress or undue influence from relatives or others when making a decision to refuse treatment. Where there is any concern in this regard, take legal advice
  • Where a patient refuses medical treatment deemed by healthcare professionals to be in their best interests it is important to undertake an early capacity assessment having particular regard to the patient’s ability to understand the information relevant to the decision and their ability to use or weigh up the information as part of the decision-making process. The capacity assessment must be kept under review. If there is any uncertainty about a patient’s capacity to refuse medical treatment (particularly where that refusal is likely to have serious consequences for the patient’s health) take legal advice
  • A suitably qualified doctor should provide advice to the patient on the proposed treatment and explain the risks and consequences of the refusal as well as any alternative treatments. Where the refusal relates to the administration of blood or blood products then consideration should be given to alternatives to blood transfusion that might be acceptable to the patient (i.e. blood salvage techniques)
  • If an incapacitated patient has previously made a clear and unequivocal advance decision refusing specified treatment in specified circumstances, it must be followed unless there is good reason to doubt its validity. Where there is any uncertainty as to the validity or applicability of an advance decision take legal advice.

Practical advice to healthcare professionals – children and young people

  • Attempt to establish early on whether the child, young person or their parents is of a religion which is likely to impact on medical treatment decisions
  • Where the child, young person or their parents refuse treatment which is deemed by healthcare professionals to be in their best interests, a suitably qualified doctor should provide advice on the proposed treatment and explain the risks and consequences of the refusal as well as any alternative treatments. With the permission of the patient or their parents, the Jehovah’s Witness Hospital Liaison Committee can take part in these discussions
  • A full record of discussions with the child/young person and their parents should be documented in the medical notes including details of wishes and intentions expressed
  • Healthcare professionals should always listen to and have regard to any wishes or views expressed by a child or young person when making a best interests decision
  • Where a child or young person refuses treatment which is deemed to be in their best interests it is lawful for healthcare professionals to treat the child with the consent of a parent who has parental responsibility. However it is always advisable to take legal advice where parents are seeking to override the refusal of a young person aged 16/17 or a Gillick competent child even if that treatment is deemed to be in their best interests
  • In the case of refusal of a blood transfusion, early assessment should be made of whether transfusion of blood or blood products will become an issue. Most surgical procedures do not require or involve blood transfusions
  • Where a refusal of treatment by a Gillick competent child, a young person aged 16 or 17 or their parents gives rise to a significant risk of harm or death, take legal advice
  • Emergency life sustaining treatment should not however be delayed pending parental consent or court order if it is deemed to be in the child’s best interests.

When legal advice is indicated, NHS Trusts are strongly advised to consult their legal advisers at an early stage so as to avoid the need for an urgent or out of hours court application at a later stage. If unforeseen circumstances necessitate an urgent court application, it is usually possible for a telephone hearing to be arranged (24/7) within an hour before a duty High Court judge. Emergency life sustaining treatment should not be delayed pending court order if it is deemed to be in the patient’s best interests.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.

Legal Update – deprivation of liberty: Government dispenses with the requirement for Coroners to hold an investigation into all deaths under DoLS

The recently implemented Policing and Crime Act 2017 (PCA 2017) has removed the requirement for a coroner to hold an investigation or inquest into the death of every person who dies while subject to a Deprivation of Liberty Safeguards (DoLS). This change applies to deaths occurring on or after 3 April 2017.

Prior to this change in the law, persons who died under a DoLS were regarded as being in ‘state detention’ and as such the Coroners and Justice Act 2009 (CJA 2009) required that a coroner’s investigation be held in each and every case, irrespective of whether the cause of death was a natural one.

Following the Supreme Court decision in Cheshire West (which substantially broadened the definition of a ‘deprivation of liberty’) the number of people requiring DoLS authorisations increased exponentially. This lead to a dramatic increase in the number of deaths under DoLS being referred to coroners who consequently found themselves overwhelmed by the increased administrative burden. In addition, many more bereaved families were put through the distress of having their loved-one’s death referred to the coroner when in the vast majority of cases this would have been unnecessary had it not been for the existence of a DoLS.

The PCA 2017 has amended the definition of ‘state detention’ within CJA 2009 so that it no longer includes persons subject to DoLS. This change in the law applies to deaths occurring on or after 3 April 2017. The old law will continue to apply to deaths occurring before this date even if the death is not reported to the coroner until after 3 April 2017.

It remains the law that where the cause of death is unknown or is suspected to be violent or unnatural, of if the deceased died while in prison or police custody, a referral to the coroner will  still be required regardless of whether the deceased was subject to a DoLS or not.

The Chief Coroner has issued new guidance to accompany this change in the law:-

Addressing criticism of the old guidance by the Court of Appeal in Ferreira, the new guidance confirms that where a person dies while subject to restrictions amounting to ‘state detention’ in a hospital or care home without a DoLS authorisation in force, that death will still fall within the definition of ‘state detention’ for the purpose of CJA 2009 and as such will require a coroner’s investigation.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Law Commission Report: ‘Liberty Protection Safeguards’ are proposed to replace DoLS scheme

On 13th March 2017, following the conclusion of a lengthy public consultation, the Law Commission published its long awaited final report and draft bill setting out recommendations for the reform and replacement  of Deprivation of Liberty Safeguards (DoLS). The proposed replacement scheme is called the Liberty Protection Safeguards (LPS).

The DoLS scheme has been heavily criticised for being an ‘administrative and bureaucratic nightmare’ which is ‘not fit for purpose.’ The Law Commission review was prompted by an exponential rise in DoLS applications triggered by the Supreme Court decision in Cheshire West which widened the definition of a deprivation of liberty.  This in turn has placed a considerable strain on overstretched and under-resourced local authorities responsible for processing the applications.

The Liberty Protection Safeguards – what is being proposed?

  • LPS will apply to a broader range of care settings – whereas the DoLS scheme only applies to hospital and care home settings the replacement scheme will also include supported living arrangements and people’s homes. This will obviate the current requirement to obtain Court of Protection authorisation for deprivations of liberty arising outside of hospitals and care homes. This court process is both time consuming and expensive and consequently is underutilised, thus leaving persons unlawfully deprived of their liberty with no safeguards in place.
  • Arrangements that can be authorised – rather than simply authorising the deprivation of liberty itself (which is what currently happens under DoLS), the LPS scheme will enable the authorisation of the ‘arrangements’ which give rise to a deprivation of liberty. In other words it is the care regime that is authorised including place of residence and means and manner of transport between particular places.
  • LPS will apply to persons aged 16 and over – the current DoLS scheme only applies to those aged 18 and over (despite the majority of the MCA provisions applying to 16 and 17 year olds). This means that the deprivation of liberty of a 16 or 17 year old currently requires court authorisation unless Mental Health Act detention is deemed appropriate. Not only is this expensive and onerous for local authorities and NHS bodies who are required to make the applications, it also causes unnecessary distress to young people and their families. In practice, under the current system, far fewer applications are made than are required, thus leaving young people without the protection of DoL safeguards.
  • LPS authorisations will be undertaken by the ‘Responsible Body’– the body responsible for arranging care and treatment (to the extent that this is practicable) will also be responsible for processing the LPS authorisations.  The ‘responsible body’ will replace the current ‘supervisory body’ and ‘managing authority’ under the DoLS scheme. In the case of care arrangements being carried out primarily in a hospital setting, the ‘responsible body’ will be the relevant NHS Trust. In the case of care arrangements being carried out primarily through the provision of NHS continuing healthcare, the ‘responsible body’ will be the relevant clinical commissioning group. In all other cases the responsible body will be the relevant local authority.
  • LPS conditions for authorisation – there are a prescribed list of ‘conditions’ that must be met in order for the ‘responsible body’ to authorise arrangements which would give rise to a deprivation of liberty:-
  1. the person lacks capacity to consent to the arrangements;
  2. the person is of ‘unsound mind’;
  3. the arrangements are necessary and proportionate;
  4. the required consultation has been carried out;
  5. an independent review has been carried out;
  6. in certain cases, the approval of an Approved Mental Capacity Professional has been obtained;
  7. the arrangements must not conflict with a valid decision of a donee of an LPA or a court appointed deputy.
  • The LPS assessments – three assessments must be undertaken:-
  1. a capacity assessment in accordance with MCA principles;
  2. a medical assessment (whether the person is of unsound mind);
  3. an assessment of whether the safeguards are ‘necessary and proportionate’ weighing up the likelihood of harm to the person or to others.

The responsible body will be able to rely on a previous LPS capacity or medical assessment providing it is reasonable to do so. The best interests requirement will be removed as the Law Commission feels that this adds nothing to the consideration of whether a deprivation of liberty is necessary and proportionate. These assessments will be undertaken by a minimum of two assessors who are independent of each other. Their assessments will then be reviewed by an independent reviewer (who can also be someone employed by the responsible body) who will decide whether the conditions have been met.

  • Independent review – an independent review will be carried out in all cases in order to confirm that the conditions for an authorisation are met or, in certain cases to refer the matter to an Approved Mental Capacity Professional (AMCP).  Given that in many cases the three LPS assessments will be undertaken by members of the team responsible for the person’s care and treatment, this new role of ‘independent reviewer’ is intended to ensure that those involved in the person’s day-to-day care and treatment do not have the final say on whether that person should be deprived of their liberty. Consequently the independent reviewer must not have any direct involvement in the person’s care or treatment and neither must they be the person’s Approved Mental Capacity Professional (AMCP).
  • The Approved Mental Capacity Professional – this new role builds on the existing role of the ‘best interests assessor’ under the DoLS scheme. LPS require a referral to be made to an AMCP if :
  1. it is reasonable to believe that the person does not wish to reside or receive care or treatment at a particular place; or
  2. where arrangements are regarded as necessary and proportionate either wholly or mainly by reference to the likelihood and seriousness of harm to others.

In all other cases there will be a power to refer to an AMCP but not an obligation. The role of the AMCP is to decide whether the arrangements should be approved. For that purpose they are required to meet with the person (if practicable) and can consult with key individuals in the person’s life. The AMCP’s written approval is required to enable the responsible body to authorise the arrangements.

  • The authorisation – the authorisation can either take effect immediately or within the next 28 days. It can last for an initial period of up to 12 months and can then be renewed for a second period of up to 12 months and thereafter for periods of up to 3 years.
  • Reviews – the responsible body must set out fixed dates or prescribed intervals for review of the authorisation and must keep it under review generally thus responding to any change in circumstances when they occur.
  • Urgent authorisations – the current system of urgent DoLS authorisations will be abolished under the new scheme. Instead there will be statutory authority to deprive a person of their liberty temporarily in truly urgent situations and in sudden emergencies, but only to enable life-sustaining treatment or to prevent a serious deterioration in the person’s condition.
  • The LPS safeguards:-
  1. Advocacy – once an authorisation is in place there is a duty to appoint an advocate (IMCA) unless there is an ‘appropriate person’ available to represent and support persons deprived of their liberty. The appropriate person replaces the relevant person’s representative under the DoLS scheme.
  2. Legal Challenge – the LPS provides a right of legal challenge to the Court of Protection but the Commission also recommends that the government consider whether a first-tier tribunal might be more effective in dealing with such challenges (with the court of Protection regarded as being too slow and costly and failing to guarantee effective participation of the person).

Liberty Protection safeguards – what happens next?

Following the publishing of the Law Commission’s report and draft bill the Department of Health are now required to formally respond, which is anticipated to take place within the next 12 months. Further modifications are likely to take place before the draft bill is put before Parliament and goes through the usual legislative process. So unfortunately, it is still going to be some time yet before a new system is in place, and, that is assuming that Parliament adopts the Law Commission’s recommendations in some form or another which of course is not guaranteed.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.

Legal Update – Court of Protection

N v ACCG & Others [2017]: the Supreme Court rules on the approach the Court of Protection should adopt when a care provider is unwilling to provide or fund care sought by a person lacking capacity or by their family.

The Facts

This case concerned young adult, MN, with severe physical and learning disabilities, who lived in a residential care home. His care was being funded by his local CCG. The fact that MN lacked capacity to make decisions about his place of residence and care arrangements was not in issue. His parents wished that MN be allowed to come home for visits and for his mother to provide his personal care. The care home was unwilling to facilitate these visits as it would necessitate employing and training up new carers to accompany MN. MN’s existing carers refused to accompany him on home visits due to an alleged history of aggressive and intimidating behaviour towards them by the parents. Based on past experience, the care home had no faith that the mother would cooperate with staff in the provision of personal care. The CCG backed the care home’s stance stating that it was not in MN’s best interests to have home visits or have his personal care provided by his mother. Therefore the care home was unwilling to facilitate the parents request and the CCG was unwilling to fund it.

Court of Protection decision

The case came before the Court of Protection for hearing in 2013 on the application of the Local Authority and the CCG. The Official Solicitor, representing MN, supported the CCG’s stance that the care arrangements sought by the parents were not in MN’s best interests. The CCG argued that since it had already made a decision not to allow or fund such care the Court of Protection had no power to order it to do so. The judge agreed stating that, when determining what was in MN’s best interests, the Court of Protection could only choose between ‘available options’. As the care arrangement sought by the parents was not an ‘available option’ then the court was not in position to rule upon whether it was in MN’s best interests. The judge held that the court had no greater powers than the patient would have if he were of full capacity.

The parents appealed to the Court of Appeal who upheld the Court of Protection decision. The parents then appealed to the Supreme Court.

Supreme Court decision

The Supreme Court dismissed the parents appeal. In the leading judgment Lady Hale stated:

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”.

As the care arrangement the parents were seeking was not an ‘available option’, Lady Hale concluded:

[T]he court did not have the power to order the CCG to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do.

Comment

The Mental Capacity Act 2005 establishes a comprehensive framework for decision making on behalf of people who lack capacity to make decisions for themselves. The decision-maker stands in the shoes of the person [P] who is unable to make a decision and must act in P’s best interests. It is axiomatic that the decision-maker can only make a decision which P could have made themselves had they not lacked capacity. The decision-maker cannot make a decision which is not available for P to make even if they consider it to be in P’s best interests.

Consequently, when the Court of Protection is the decision-maker its function is simply to decide what course of action is in P’s best interests from the ‘available options.’ The Court of Protection cannot be used as a means of forcing commissioners or providers of care to fund or supply services which they are unwilling or unable to provide. However, in fulfilling this function the Court of Protection can still be expected to robustly probe the decision-making behind those available options particularly if it has led to the P’s preferred care option not being included.

Judicial review by the Administrative Court remains the appropriate legal process for challenging decisions about care funding and provision. Unlike Court of Protection proceedings, the focus of judicial review is on the legality or procedural regularity of the decision rather than the best interests of P.

The Supreme Court decision in N v ACCG & Others will no doubt come as welcome news to commissioners and providers of care who will no longer face the risk of having their care package and funding decisions challenged in the Court of Protection.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update – Obstetric Care

Pregnant women who lack capacity:  when is court intervention required for the provision of obstetric care?

In the context of obstetric care it is not uncommon for healthcare professionals to encounter pregnant women whose lifestyle or medical choices appear to be diametrically opposed to the best interests of their unborn child. Yet, until the moment of birth, a foetus does not have a legal identity separate to that of its mother. Unless the woman lacks capacity to make decisions about her obstetric treatment, the law requires that her personal autonomy is respected even if her choices and decisions are likely to have a detrimental impact on her own health or that of the unborn child. The Mental Capacity Act 2005 makes clear that a person is not to be treated as lacking capacity to make a decision merely because they make an unwise decision.

In the context of the delivery suite a woman who has capacity is entitled to refuse medical interventions such as caesarean section or instrumental delivery even if that refusal puts her own life or the life of her unborn child at risk. When this situation arises, it can be extremely distressing for healthcare professionals who inevitably feel powerless to intervene despite an overwhelming professional and ethical compulsion to do so. To impose such intervention in the face of a competent patient’s unequivocal refusal can give rise to the risk of criminal, civil or disciplinary proceedings for the Trust and its staff.

The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to make decisions for themselves. It is a fundamental principle of the Act that a person is presumed to have capacity to make a decision unless it is established that capacity is lacking. Therefore, when a pregnant woman is making a seemingly irrational decision about her obstetric treatment, particularly where that decision threatens her health or that of her unborn child, it is important to undertake a capacity assessment.  Capacity assessments are decision specific. So, whereas a patient may have capacity to make a decision about whether to have pain relief in labour she may simultaneously lack capacity to decide whether to agree to a caesarean section.

Where a pregnant woman is assessed as lacking capacity to make a particular decision about her obstetric care, then healthcare professionals can make that decision on her behalf providing they act in her best interests. The least restrictive option should always be considered.

Where concern arises about a pregnant woman who lacks, or may lack, capacity and who is refusing care deemed to be in her best interests (or the interests of her unborn child) it is important to seek legal advice in case a Court of Protection application is required.

In the case of NHS Trust & others v FG [2014] the Court of Protection issued important guidance on when and how applications should be made in obstetric cases where the woman lacks (or may lack) capacity . The Court identified 4 categories of cases in which a court application should be made:-

  • Category 1 – where the proposed intervention amounts to ‘serious medical treatment’ i.e. those cases where there is a fine balance between the benefits and the risks of the proposed treatment/s; or where the proposed treatment, procedure or investigation would be likely to involve ‘serious consequences’ for the patient.
  • Category 2 – where there is a real risk that the patient will be subject to more than transient forcible restraint;
  • Category 3 – where there is a serious dispute as to what obstetric care is in the patient’s best interest whether as between the treating clinicians or between the clinicians and the patient herself.
  • Category 4 – where there is a real risk that the patient will suffer a deprivation of liberty which, in the absence of a court order authorising it, would be unlawful.

The Court specifically identified that the following situations require court application, namely, those cases in which delivery by caesarean section is proposed and either:-

  • the merits of the procedure are finely balanced; or
  • the procedure is likely to involve more than forcible restraint

The Court stressed the importance of early identification of women in respect of whom a court application may be required so that capacity assessments can be undertaken and obstetric care plans formulated as to how obstetric care can be delivered in their best interests.

Where a case falls into one of the four abovementioned categories the Court directed that an application should be made at the earliest opportunity and, save in the case of a genuine medical emergency, any court application should be made no later than 4 weeks prior to the expected date of delivery. Therefore it is crucial that a Trust seeks legal advice as soon as such cases are identified so that appropriate legal steps can be taken if so required.

The recent case of A University Hospital NHS Trust v CA [2016] serves as a cautionary reminder to Trusts not to delay in making court applications in obstetric cases. This case involved a young woman with autism and learning disability who had a fear of hospitals and medical intervention. She was assessed as having little, if any, understanding of what labour and child birth involved and wanted to deliver her baby at home without medical assistance. The view of treating clinicians was that delivery by planned caesarean section was in her best interests. Unfortunately the Trust failed to make an application until two weeks prior to the woman’s due date. Consequently the Trust received a stern reprimand from the Judge:

‘This extremely unsatisfactory situation has been brought about by the failure of the Trust to start proceedings at an early stage. In this respect, the Trust has manifestly failed to comply with the guidance [in FG]…That guidance is compulsory reading for all professionals involved with such cases.’

The judge reiterated the importance of Trusts and their legal advisors following the Court of Protection guidance in FG stating:

‘Hereafter, all NHS Trusts must ensure that their clinicians, administrators and lawyers are fully aware of, and comply with, the important guidance given [in FG] in respect of applications of this sort.’

This case serves as a useful reminder to Trusts to ensure that their midwifery and obstetric staff are familiar with the guidance in NHS Trust & others v FG [2014] and are instructed to seek early legal advice when such cases are identified. This will enable a timely court application to be made if appropriate and avoid the Trust facing the wrath of the Court of Protection judiciary and any accompanying adverse media coverage!

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update – Court of Protection: best interests & the withdrawal of life sustaining treatment

Briggs v Briggs (by his litigation friend, the Official Solicitor) & Others (2) [2016] EWCOP 53

The Facts

As a consequence of an RTA on 3 July 2015 (17 months prior to the court hearing) Paul Briggs suffered a catastrophic brain injury which left him in a minimally conscious. Consequently he lacked capacity to make decisions about his treatment and care and was unable to communicate his wishes and feelings. He was being kept alive in hospital by clinically assisted nutrition and hydration (CANH). His treating medical team were of the opinion that Mr Briggs should be transferred to a rehabilitation unit where his progress could be monitored and promoted. His wife and family disagreed. Their wish was that CANH be withdrawn and he be transferred to a hospice where he could die peacefully.

Court of Protection proceedings were brought by Mr Briggs’ wife (rather than the NHS Trust or CCG). Although (for reasons of legal funding) the application was framed as a challenge to the DoLS authorisation, in reality the wife was seeking a determination from the court on whether it was in her husband’s best interests for CANH to be withdrawn and for him to be transferred to a hospice to die.

Mr Briggs had not made a Mental Capacity Act (MCA) compliant advance decision to refuse life-sustaining treatment. Nor had he appointed an attorney to make healthcare decisions on his behalf under a lasting power of attorney (LPA). In fact there was no evidence he had ever specifically addressed what treatment he would have wanted were he to find himself in a minimally conscious state.

Mr Briggs was described by his family and a work colleague in evidence as a devoted husband and father who was a popular, outgoing, and active outdoor person. He had served in the army and the police force where he had witnessed, at first hand, death and the consequences of serious accidents.  In conversations with family and friends he had commented that he would not want to be kept alive on a life support machine as he did not consider that to be a ‘life worth living’. The family were united in their view that being kept alive by CANH while in a minimally conscious state was not something that Mr Briggs would have wanted or chosen had he been able to do so. They argued that it was in his best interests for the life-sustaining CANH to be withdrawn to enable him to die.

In evidence Mr Briggs’ treating clinicians recommended that he be moved to a specialist rehabilitation unit where, after six months, it would be possible to give a better informed diagnosis and prognosis. It was accepted, however, that even on a best case scenario, he would in the long term remain severely physically impaired and dependent on others for all aspects of his physical care. The Official Solicitor representing Mr Briggs was supportive of the clinicians’ stance.

The Judgment

Mr Justice Charles held:

  • In determining whether it is in a patient’s best interests for life sustaining treatment to be continued, the default position and starting point is ‘the very strong presumption in favour of preserving life’ where that life has value, although this presumption is not absolute. (Aintree University Hospitals NHS Trust v James [2013] UKSC 67)
  • This presumption must be balanced against the conflicting principle of autonomy and the right to self-determination which enables a person (who has capacity to do so) to refuse life-sustaining treatment and so, as a consequence, bring about their own death.
  • Charles J acknowledged that Mr Briggs’ life had value despite being in a minimally conscious state. His life could not be described as ‘futile’ or ‘of no benefit’ (as it would have been considered had he been in a permanent vegetative state – Airedale NHS Trust v Bland [1993] AC 789).
  • In determining whether it was in Mr Briggs’ best interests for his life to be prolonged by CANH, the MCA best interests test must be applied in a ‘holistic way’ thus  enabling the court to do for the patient what he would have done for himself if he’d had capacity to do so.  (Aintree)
  • The best interests test set out in MCA s.4(6) requires the court to consider, as far as is reasonably ascertainable,  the patient’s ‘past and present wishes and feelings’, ‘the beliefs and values that would be likely to influence his decision’ and ‘any other factors that he would be likely to consider if he were able to do so.’
  • The patient must be at the centre of the decision making process – the question to be asked when determining best interests is what this particular patient would have wanted – ‘the decision maker and so the judge must be wary of giving weight to what he thinks is prudent or what he would want for himself or his family, or what he thinks most people would or should want.’
  • Nevertheless, a conclusion as to what a patient would have wanted is not necessarily determinative of his best interests – this must be weighed up and balanced against all other relevant and competing factors. (Aintree)
  • The weight to be attached to a patient’s ascertainable wishes is fact sensitive, but if the decision the patient would have made ‘can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life’ thus entitling the court to conclude that it is not in the patient’s best interests for life sustaining treatment to be continued
  • Charles J accepted the evidence of the family that Mr Briggs would not have wanted to be kept alive by CANH – ‘his family and those who know him best gave evidence with courage, dignity and at considerable emotional cost to themselves, that has convinced me of what Mr Briggs would have wanted and would have decided was in his best interests if he had been sitting in my chair during the hearing.’
  • The court therefore concluded that it was in Mr Briggs best interests for CANH to be withdrawn ‘this means that the court is doing on behalf of Mr Briggs what he would have wanted and done for himself in what he thought was his own best interests if he was able to do so.’
  • Although the inevitable consequence of the court’s decision was that Mr Briggs would die following withdrawal of CANH, Charles J made clear that this was not a best interests decision as to whether Mr Briggs should live or die rather it was a best interests decision as to whether life-sustaining treatment should be continued. As such MCA s.4(5) – which states that a determination of best interests concerning the withdrawal of life-sustaining treatment must not be motivated by a desire to bring about the person’s death – did not preclude the court from making an order for the withdrawal of CANH.

Comment

  • It is not uncommon for people to comment in passing that they would not want this or that medical treatment in given circumstances. It is, however, less common for those wishes to be formalised by means of an advance decision (in accordance with the provisions of MCA s.24-26). All parties in this case acknowledged that had Mr Briggs, prior to losing capacity, made a valid advance decision refusing consent to the identified treatment in the identified circumstances then this would have been decisive and a best interests decision would not have been required. This accords with the fundamental principle of self-determination. Likewise, had Mr Briggs appointed an attorney under a valid LPA to make medical treatment decision on his behalf (including decisions to refuse life sustaining treatment),  such decisions would have been binding providing they were made in the donor’s best interests.
  • The judgment makes clear that, even in the absence a valid and applicable advance decision or LPA, the past wishes expressed and decisions made by a person (prior to losing capacity) concerning refusal of life-sustaining treatment are capable of prevailing over the very strong presumption in favour of preserving life – providing they can be ascertained with sufficient certainty.

N.B. Mr Briggs died in a hospice on 22 January 2017.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.

Deprivation of liberty & young people: the limits of parental consent

In a series of judgments over the last two years the High Court has clarified the circumstances in which parental consent can obviate the need for Article 5 safeguards for a child or young person whose confinement meets the Cheshire West ‘acid test’.

Please note that the judgment in Birmingham City Council v D [2016] discussed in this update has now been overruled on appeal. Please refer to our legal update dated 14th November 2017 for the current legal position.

Trust A v X & A Local Authority  [2015] EWHC 922 (Fam)

This case concerned the application of the Cheshire West   ‘acid test’ to those under 16. D was a 15-year-old boy with ADHD, autism, Tourette’s and learning disabilities, who was living under continuous supervision and control in a hospital psychiatric unit where he was not free to leave. D lacked capacity to consent to these arrangements.

The issue for the court was whether D’s parents could, in the exercise of parental responsibility, consent to D being confined in circumstances which would otherwise amount to an unlawful deprivation of liberty.

Keehan J held:-

  • The ‘acid test’ applies to those under 16 as it does to adults
  • D’s living conditions satisfied the ‘acid test’.
  • The court was not legally bound by Thorpe LJ’s assertion in RK v BCC & Others [2011] EWCA Civ 1305 that ‘a parent may not lawfully detain or authorise the deprivation of liberty of a child’ as this was unsupported by legal authority.
  • The parents’ consent to D’s confinement at the psychiatric unit fell within the scope of parental responsibility and as such rendered what would otherwise amount to a deprivation of liberty not a deprivation of liberty.
  • Keehan J stated that when considering the exercise of parental responsibility it was necessary to take into account D’s autism and other conditions:-

The decisions which might be said to come within the zone of parental responsibility for a 15-year-old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15-year-old son suffers with D’s disabilities. Thus a decision to keep such a 15-year-old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill-treatment. The decision to keep an autistic 15-year-old boy who has erratic challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.

Birmingham City Council v D & W [2016] EWCOP 8

In 2016 the case of D came before the High Court again. By this time D had turned 16 and was living in a residential placement. D’s living arrangements still amounted to continuous supervision and control and he was not free to leave. D still lacked capacity to consent to the arrangements.

The question for the court was whether, given that D was now 16, parental consent could still be relied upon to authorise D’s confinement in circumstances which would otherwise give rise to a deprivation of liberty.

Keehan J held:-

  • He stood by his previous decision in Trust A v X & A Local Authority but stated that things had changed now that D was 16. This is because the law treats 16 and 17 year olds differently to those under 16. This is most notably reflected in the Mental Capacity Act 2005 which includes 16/17-year-olds within its remit.
  • In the context of 16/17 year olds, parental consent to a young person’s confinement falls outside the scope of parental responsibility, regardless of capacity. Keehan J stated:-

Whilst acknowledging that parents still have parental responsibility for their 16 and 17-year-old children, I accept that the various international conventions and statutory provisions referred to, the UNCRC and the Human Rights Act 1998, recognise the need for a greater degree of respect for the autonomy of all young people but most especially for those who have attained the age of 16 and 17 years. Accordingly, I have come to the clear conclusion that however close the parents are to their child and however cooperative they are with the treating clinicians, the parent of a 16 or 17-year-old young person may not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young person’s liberty… I am satisfied that young people of 16 or 17 years are entitled to the full protection of their Article 5(1) rights irrespective of their capacity to consent to their treatment or their living arrangements.

  • Given that the MCA DoLS authorisation process does not apply to under 18’s, Court of Protection authorisation is required so as to prevent an unlawful deprivation of liberty where a young person has attained 16.

A Local Authority v D & Others [2015] EWHC 3125 (Fam)

Keehan J considered whether, in the case of a child subject to a care order or an  interim care order, the local authority can in the exercise their statutory parental responsibility consent to what would otherwise amount to a deprivation of liberty? His emphatic view was that it could not – irrespective of the child’s age. In such cases court authorisation will always be required so as to prevent a breach of Article 5.

Comment

Following this series of High Court judgments the law is currently as follows:-

  • Adults whose confinement satisfies the ‘acid test’ and lack capacity to consent require deprivation of liberty authorisation.
  • For 16 and 17-year-olds whose confinement satisfies the ‘acid test’ and lack capacity to consent (or who do have capacity but refuse), those with parental responsibility cannot give valid consent to that confinement. Article 5 safeguards are required. As the standard DoL’s authorisation process does not apply to under 18’s, court authorisation is required so as to prevent an unlawful deprivation of liberty. For the 16 or 17-year-old who lacks capacity that authorisation can be obtained from the Court of Protection. For the capacitated 16 or 17-year-old who refuses consent, that authorisation can be obtained from the Family Court.
  • Where the confinement of a child under 16 satisfies the ‘acid test’ and lacks capacity to consent (or who has capacity but refuses to consent), their parents can give valid consent to their confinement providing that is an appropriate exercise of parental responsibility. If it falls outside of the ‘zone of parental responsibility’ then court authorisation from the Family Court is required in order to prevent an unlawful deprivation of liberty.
  • Where a child or young person, including those under 16, is subject to a care order, the local authority, in the exercise of its statutory parental responsibility, cannot authorise their confinement. Court authorisation is required unless the child has capacity to consent and does consent to their confinement.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update – Deprivation of liberty in intensive care

R (Ferreira) v HM Senior Coroner for Inner South London & others [2017] – Court of Appeal judgment provides much needed clarification of the circumstances in which a deprivation of liberty arises in an intensive care setting.

The ‘acid test’ for identifying a deprivation of liberty (DoL) was established by Lady Hale in the Supreme Court case of Cheshire West in 2014, namely when a person lacking capacity is subject to continuous supervision and control and is not free to leave. Cheshire West was a case which focused on whether living arrangements for three mentally incapacitated adults gave rise to a deprivation of liberty.  The decision in Cheshire West led to a wholescale increase in DoLS authorisation applications (which has left local authorities floundering under the administrative burden) but it has also led to confusion as to precisely how far Lady Hale intended her ‘acid test’ to extend.  An example of this is the intensive care setting.

The majority of patients in intensive care units lack capacity to make decisions about their treatment, care and confinement either due to injury, disease or medication. The use of restraint (be it physical, mechanical or pharmacological) is routinely used in ICU to safely facilitate the provision of intensive care.  Following Cheshire West there has been justifiable concern amongst Acute Hospital Trusts and their intensive care staff that the use of such restraints may amount to unlawful deprivation of liberty where the patient lacks capacity to consent to them – technically such patients appear to fulfil the ‘acid test’. Consequently, intensive care staff frequently face the dilemma of whether to go through the burdensome process of obtaining a DoLS authorisation, or run the risk of unlawfully depriving a patient of their liberty.

Although the case of Ferreira actually concerned the interpretation of coronial law, the Court of Appeal has provided welcome clarification of the circumstances which can give rise to a deprivation of liberty in an intensive care (and emergency treatment) setting. Giving judgment on behalf of the court Lady Justice Arden stated that restrictions on movement arising from the administration of life-saving treatment to a person who lacks capacity to consent do not amount to an unlawful  deprivation of liberty providing that:-

  • the restrictions are rendered unavoidable as a result of circumstances beyond the control of authorities; and
  • the treatment is necessary to avert a real risk of serious injury or damage; and
  • the restrictions are kept to the minimum required for that purpose.

Lady Justice Arden stressed that such treatment must be given in good faith and must not be materially different to that which would ordinarily be given to a patient of sound mind who is suffering the same medical condition.  For example, a patient of unsound mind suffering life-threatening breathing difficulties, requiring sedation on ICU in order to intubate and ventilate him, will receive materially the same treatment as that which would be given to a patient of sound mind suffering the same respiratory problem who requires ventilation. Both patients require pharmacological restraint in the form of sedation in order to intubate them.

Contrast this with the scenario where a patient with severe autism on ICU requires sedation as a form of restraint following surgery to prevent agitation and the risk of serious self-injury. The use of sedation in these circumstances clearly amounts to treatment materially different to that which would be given to patient of sound mind who has undergone the same surgery and as such gives rise to a deprivation of liberty requiring a DoLS authorisation.

In Ferreira the Court of Appeal went on to provide helpful clarification as to what is meant by the ‘not free to leave’ element of the ‘acid test’. Invariably ICU patients are ‘not free to leave’ due to their underlying physical illness (and the necessary treatment thereof) rather than any refusal by staff to accede to a patients request to leave.  Lady Justice Arden made clear that the focus must be on whether the patient expresses a wish to leave and is prevented from doing so by the state. Where it is the patient’s physical illness which prevents them from being ‘free to leave’ the ‘acid test’ is not satisfied. Likewise if it is patient’s family, rather than the patient themselves, who express the wish to remove them (and are prevented from doing so by the state) the ‘acid test’ is not satisfied either.

Although Ferreira concerned deprivations of liberty in an ICU setting, the reasoning in the judgment appears to extend to life-saving treatment across acute inpatient healthcare settings.

As a consequence of this judgment, Acute Hospital Trusts can (for the time being at least)  be spared the administrative burden of having to make applications for DoLS authorisations for the vast majority of mentally incapacitated patient’s in ICU. More importantly, intensive care staff can get back to their real priority – the provision of safe and effective care to critically unwell patients. These considerations clearly influenced the court’s decision with Lady Justice Arden concluding:

To require authorisation of the deprivation of liberty in what would be a normal ICU case would involve a significant dilution and distraction of clinical resource, time and attention. That must inevitably risk jeopardising the outcome for all ICU patients, for no apparent policy reason.

One final note of caution – the Ferreira family have applied for permission to appeal this decision to the Supreme Court so this may not be the court’s final word on this matter.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

Legal Update – deprivation of liberty: Covert Medication

AG v BMBC and SNH [2016] EWCOP 37 – the Court of Protection provides guidance on the use of covert medication in persons who lack capacity.

The Facts

AG was a 92 year old patient with dementia who resided in a care home. She was subject to a 12 month DoLS authorisation. AG lacked capacity to make decisions about her medical treatment, care and accommodation. Her care plan included the covert administration of thyroxin intended to prevent a serious deterioration in her physical health. Subsequently the covert administration of diazepam was added to the care plan – this was not discussed with AG’s family, her RPR, social worker or the supervisory body although there was no dispute that this was in her best interests.

Following a s. 21A challenge to the DoLS authorisation,  the case came before the Court of Protection for consideration of whether AG could be safely managed in the community.

The Judgment

District Judge Bellamy held that the use covert medication without consent amounted to an interference with AG’s Article 8 right to respect for private life and also contributed to the factors which gave rise to an Article 5 deprivation of liberty. As such it should have been agreed at a best interests meeting, properly documented in AG’s records and subject to proper reviews and safeguards. The administration of covert medication should always be subject to close scrutiny.

The following guidance was given on the use of covert medication in persons who lack capacity:-

  • If a person lacks capacity to understand the risks to their health from not taking their prescribed medication or is refusing to take their medication, it should only be administered covertly in exceptional circumstances.
  • Save in urgent circumstances, a best interests meeting involving relevant healthcare professionals, family members and the RPR should be held to discuss the use of covert medication.
  • If there is no agreement that administration of covert medication is in the person’s best interests agreement, a Court of Protection application should be made immediately.
  • If there is agreement, then this should be recorded in the patients medical and care home records.
  • There must be an agreed management plan put in place for the use of covert medication which should specify time frames for review (possibly monthly where the DoLS authorisation is longer than 12 months) and the circumstances which will trigger a review (such as a change in medication).
  • All documentation should be easily accessible in the patient’s records.
  • The use of covert medication must be clearly identified within the DoLS assessment and authorisation.
  • Where there is a plan for covert medication, then a standard DoLS authorisation for the maximum period of 12 months will only be justified where there is provision for regular review. A shorter authorisation period would normally be more appropriate.

Comment

This judgment highlights the widespread use of covert sedation in care home settings where often there is little or no regard to the implications for the persons Article 5 and 8 rights. The decision reinforces the existing NICE guidelines and provides a timely reminder of the need for proper scrutiny and safeguards where medication is to be covertly administered.

Although this case arose in a care home setting, there is no reason why it is not of equal application to patients in a hospital setting. NHS Trusts are therefore advised to review their existing policies on covert medication to ensure they are compliant.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.