This case concerns case management hearings in relation to nine unrelated cases. Each case relates to applications for deprivation of liberty of respective Patients (‘P’), made under the Re X procedure (X v Ors (Deprivation of Liberty) [2014] EWCOP 25, 7th August 2014, and X v Ors (Deprivation of Liberty) (Number 2) [2014] EWCOP 37, 16th October 2014) in the light of the Court of Appeal’s comments discrediting the Re X procedure ([2015] EWCA Civ 599).

The main issue was regarding making P a party and appointing a suitable litigation friend.

This case concerned PH who has severe physical and learning disabilities and is without speech. He lacks capacity to decide for himself where to live. He receives accommodation and support at public expense, initially under the Children Act 1989, and since his majority under the National Assistance Act 1948. The issue was: which authority should be responsible?

This depended, under sections 24(1) and (5) of the 1948 Act, on, where immediately before his placement in Somerset, he was "ordinarily resident".

The role of the professional deputy, the discretion confirmed upon a professional deputy and the ambit of section 18 (1) (b) MCA 2005 namely, in this case, a gift or other disposition of P’s property.

How the payment of school fees for P’s brother fits within the mutual dependence in damages reported cases.

The meaning of and implication in this case of clause 2 (d) of the order appointing the deputy provided: “The deputy may make provision for the needs of anyone who is related to or connected with A if she provided for, or might be expected to provide for, that person's needs by doing whatever she did, or might reasonably be expected to do, to meet those needs“.

The applicability  of section 4 MCA and  the “best interest” test.

Whether the professional deputy  appointed by the court had acted outside the scope of his authority and as such, the school fees should be repaid and no further payments made from P’s clinical negligence fund, as advocated by the Official  Solicitor.

Judicial precedent in the Court of Protection.

In this application for a Forced Marriage Protection Order there was a dispute as the extent to which P lacks capacity to litigate and capacity to consent to marriage or sexual relations.  A report from a psychologist as ordered was not available and the court had to adjourn the case as it was key to the proceedings. The local authority sought to extend the interim injunctive orders made in September 2014, such orders having been made without consideration of the merits of the application.

The court had to consider whether the injunctive orders and forced marriage protection order should continue or whether undertakings would suffice.

The core issue was whether P had capacity to marry. If he did not have capacity to marry then he would not be able to marry even if he wished to do so.

Background
P aged 28 was subject to a dispute as to whether he lacks capacity to litigate, consent to marriage or engage in sexual relations. The court had made a direction for the filing of an expert psychological report. At the day of the hearing the report was not available and the court had to adjourn and list the matter when the report was to be filed. The court had to decide what should happen in the interim. The father of P said in a statement “I do not have the intention for my son to get married unless he wishes to get married”.

The court in September 2014 had made a raft of injunctive orders to protect P’s position – there had never been a substantive consideration of the merits orders and Mr Justice Moor had to decide how best to protect P pending the next hearing.

Clearly during the course of this interim hearing there had been discussions as to  going on holiday and the possibility of a holiday to Turkey, that holiday being arranged by his sister, a teacher who gave evidence albeit not on oath to the court. 

Decision
In the interim pending the next hearing, the court disagreed with the local authority that there needed to be the stringent orders which had been in place in September 2014 and discharged the forced marriage protection injunction. In particular the judge disagreed with the local authority that it was necessary for P’s passport to be retained. The parents, through their counsel, had offered undertakings in some of the terms of the order which had been made by the Deputy District Judge in September 2014. Mr Justice Moor accepted those undertakings, in particular: not to take P to Bangladesh until the next hearing and that they were not to facilitate, allow or otherwise permit P to undergo any ceremony or purported ceremony of marriage, civil partnership, betrothal or engagement or from entering into any arrangement in relation to the engagement or matrimony whether by civil or religious ceremony of P whether within English jurisdiction or outside it. Furthermore they were to undertake  not to instruct, encourage or suggest any other person to do so. On that basis  Mr Justice Moor discharged the injunctions and directed the return of P’s passport to his parents.

The court, having heard evidence, albeit not on oath from P’s sister who is a teacher, was satisfied there was no intention to take P to Bangladesh.

Discussion
Whilst the court clearly had no option other than to adjourn the case due to lack of an expert psychologist report as previously ordered, some may consider that the court took a bold step in discharging the injunctive orders and accepting undertakings given by parents with also the return of P’s passport to them. This may be particularly so in the light of reports of many young people travelling to Turkey and on to other destinations, for reasons not previously disclosed. It must be stressed that in the judgment there is no suggestion that this was an action being contemplated by anyone in P’s family, or alluded to by the local authority. However the court’s action highlights the clear need for there to be proper judicial consideration of the content and duration of orders and the continuation of such orders are not simply a rubber-stamping exercise. Orders must be based upon evidence and the court must look at the least restrictive option available. The original orders were made by a court in September 2014 and it appears that there has never been a substantive consideration of the merits of the orders being sought. This case also highlights severe delay is affecting all participants in Court of Protection cases – the fact that an order was made in September 2014 which remains in existence in April 2015 clearly reveals the delays which are being experienced.

Read the full text of the judgment on Bailii

A serious medical case, how a case should be prepared prior to an application and how the court determines such applications.

The Trust sought declarations as follows:

1. It was not in P’s best interests to receive cardio pulmonary resuscitation (CPR) in the event of a cardiac arrest (this is uncontentious);
   
2. whether it is lawful to continue to provide renal replacement therapy (RRT). The Trust wished to discontinue life-sustaining treatment with the consequence that P  would die quickly.

Was P in a permanent vegetative state (VS) or minimally conscious state (MCS)? Irrespective of this there is little dispute between the experts that the prognosis for P was that he was unlikely ever to make a full recovery. However, in terms of RRT, the diagnosis as to whether P was in VS or MCS was crucial; if he was in VS then there was no prospect of recovery and thus it would not be in P’s best interest to continue to treat, but if P was in MCS then the best interest tests in accordance with section 4 of the MCA and appropriate professional guidance must be applied.

 Were the family able to take video recordings of P and could they rely on such recordings in court?
The court found that there was an absolute necessity for a structured assessment (SMART/ WHIM) to have been undertaken before an application is considered.

Health and welfare application by a local authority seeking declarations:

1. to move the Patient, PL, to OL, a care home in Lincolnshire (currently PL resides in Dorset); and
   
2. that it is in PL’s best interests to have restricted and supervised contact with his mother, AL, at an off-site location.

The official solicitor on behalf of PL and the applicant local authority, having considered the options of another care home, CC, and OL, maintained that OL was the most suitable and would be in PL’s best interest to move to OL. AL believed it to be in PL’s best interest to move to CC.

In relation to contact the court did not undertake a  factual enquiry as to what may or may not have led to the breakdown of the relationship between AL and staff at the current home BH.

This case concerns applications under section 63, and Schedule 3 of the Mental Capacity Act 2005 (‘the Act’) by the Health Service Executive of Ireland (‘HSE’) for recognising and enforcing orders made by the Irish Court in relation to three applications for three different Patients (‘P1, P2, and P3’). The court listed all three cases together. 

The court considered legal argument and determined the relevant legal principles relating to such orders.