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MENTAL CAPACITY REPORT: COMPENDIUM October 2017 | Issue 80 Welcome to the October 2017 Mental Capacity Report. Highlights this month include: Editors Alex Ruck Keene (1) In the Health, Welfare and Deprivation of Liberty Report: Victoria Butler-Cole serious medical treatment cases and the involvement of the CoP, Neil Allen family members and Rule 3A and DoLS before the European Annabel Lee Court of Human Rights; Anna Bicarregui (2) In the Property and Affairs Report: financial abuse at home Nicola Kohn and tools to combat financial scamming; Simon Edwards (P&A) (2) In the Practice and Procedure Report: a transparency update, Scottish Contributors a guest article on welfare cases in practice before the CoP and a Adrian Ward problematic case on capacity thresholds and the inherent Jill Stavert jurisdiction; (3) In the Wider Context Report: the LGO and the MCA 2005, an update on the assisted dying challenge, the Mental Health Act review and guidance for enabling serious ill people to travel; (4) In the Scotland Report: the Scottish Public Guardian on powers of attorney problems and a sideways judicial look at the meaning of support. You can find all our past issues, our case summaries, and more The picture at the top, on our dedicated sub-site here, and our one-pagers of key cases “Colourful,” is by Geoffrey on the SCIE website. Files, a young man with autism. We are very We also take this opportunity to welcome Katie Scott to the grateful to him and his editorial team! family for permission to use his artwork. For all our mental capacity resources, click here MENTAL CAPACITY REPORT: COMPENDIUM October 2017 HEALTH, WELFARE AND DEPRIVATION OF LIBERTY Page 2 Contents HEALTH, WELFARE AND DEPRIVATION OF LIBERTY ...................................................................................... 3 A dramatic shift? Treatment withdrawal and the role of the Court of Protection ...................................... 3 Families, confinement and Rule 3A Representatives ....................................................................................... 8 DOLS before the European Court of Human Rights ........................................................................................ 11 10 years of the Mental Capacity Act .................................................................................................................. 13 PROPERTY AND AFFAIRS .................................................................................................................................... 14 Financial Conduct Authority Proposes Online LPAs ....................................................................................... 14 Vulnerable individuals and their money – at risk of abuse in their own homes? ...................................... 14 Financial scamming resources ........................................................................................................................... 15 PRACTICE AND PROCEDURE .............................................................................................................................. 16 Court of Protection Rules 2017 ........................................................................................................................... 16 Transparency update ............................................................................................................................................ 16 Access to justice in the Court of Protection ..................................................................................................... 18 Inherently problematic? Capacity thresholds, autonomy and the inherent jurisdiction .......................... 24 Short Note: judicial concern about inherent jurisdiction and deprivation of liberty .................................. 30 Court of Protection statistics: April to June 2017 ........................................................................................... 31 Amendment to Explanatory Report of the 2000 Hague Convention ........................................................... 32 THE WIDER CONTEXT .......................................................................................................................................... 33 The LGO and the MCA 2005 ................................................................................................................................ 33 Assisted dying challenge update ........................................................................................................................ 33 Mental Health Act Review .................................................................................................................................... 35 Vulnerability and mental health guide launched for energy sector .............................................................. 36 Supporting seriously ill people to travel abroad ............................................................................................... 36 End of life care ........................................................................................................................................................ 37 SCOTLAND .............................................................................................................................................................. 38 A commotion next door – sequel from the Public Guardian......................................................................... 38 Two points ............................................................................................................................................................... 39 Health and Education Chamber, First Tier Tribunal for Scotland ................................................................. 42 For all our mental capacity resources, click here MENTAL CAPACITY REPORT: COMPENDIUM October 2017 HEALTH, WELFARE AND DEPRIVATION OF LIBERTY Page 3 potential appeal by the Official Solicitor, the HEALTH, WELFARE AND DEPRIVATION question of whether or not a legal obligation OF LIBERTY exists. This is a more nuanced question, to which we return below after putting this decision A dramatic shift? Treatment withdrawal in its context. and the role of the Court of Protection Background M v A Hospital [2017] EWCOP 19 (Peter Jackson J) M was in what was described by Peter Jackson J as an MCS as the result of Huntingdon’s Medical treatment – treatment withdrawal Disease. Her family, in complete agreement with the treating team at the Trust responsible for her Summary1 care, believed that it was not in her best interests to continue to receive CANH. However, and as In M v A Hospital Peter Jackson J (giving one of Peter Jackson J found was entirely his last judgments before his elevation to the understandably to have been the case, all those Court of Appeal) has made clear his view that concerned felt that “an external decision” was there is no legal obligation upon medical required before CANH could be stopped. The practitioners to seek the sanction of the court matter was formally brought to the court by M’s before withdrawing clinically assisted nutrition mother as a challenge to a deprivation of liberty and hydration (‘CANH’) from patients in a authorisation in place for M at the hospital where permanently vegetative state (‘PVS’) or she was being cared for. In reality, this was a minimally conscious state (‘MCS’), where all mechanism in order to ensure that non-means concerned are in agreement that to provide such tested legal aid was available (a mechanism treatment is no longer in the person’s best which has now been ruled out by the Court of interests. Appeal in Briggs). As Peter Jackson J identified, Peter Jackson J’s judgment has been widely the real application was for a determination “if misreported as relating to a right to die – it is no required” that it was in M’s best interests not to such thing; rather, it relates to the right not to be continue with CANH. Unusually, but not subject to treatment to which a person cannot unprecedentedly, M was not represented by the consent and which is not in their best interests. Official Solicitor as her litigation friend, but rather It has also been misreported as relating to the by her mother, and, whilst we do not address this withdrawal of care – again, this is wrong, as further here, Peter Jackson J’s judgment palliative care would always be provided to the contains some important observations as to individual concerned even after CANH has been when it is appropriate for a family member to act withdrawn. Finally, it has also been reported as as P’s litigation friend in a serious medical determining conclusively, subject to any treatment case. As will be set out further below, 1 Note, Tor having been involved in the case, this note is prepared without her input. For all our mental capacity resources, click here MENTAL CAPACITY REPORT: COMPENDIUM October 2017 HEALTH, WELFARE AND DEPRIVATION OF LIBERTY Page 4 however, the Official Solicitor was to have a should do so conscientiously, drawing further – important – involvement in the upon their personal and professional proceedings. knowledge of the individual concerned.” The decision Future applications? On the substantive question before the court, Peter Jackson J had little difficulty in Why the judgment has aroused much wider determining that it was not in M’s best interests interest is as a result of what Peter Jackson J for CANH to be continued, and indeed found that then went on to do. Until very recently, the the evidence had shown that it had not been conventional

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