Can The Court of Protection Keep a Patient Alive?

It is well known, and often the cause of heated debate, that assisted suicide is illegal within the United Kingdom. If a person is terminally ill and wishes to die, that person would have no rights under UK law to end their life with dignity. However, recent case law suggests that there may be a slight shift in how the Court of Protection handles a terminally ill patient.

Recently, the Supreme Court judged that a 52 year old man (Mr Y) with an extensive brain injury should be allowed to die without Mr Y’s family being forced to apply to the Court of Protection. At the time of the application, Mr Y was receiving clinically assisted nutrition and hydration and although Mr Y had died at the time of the appeal, it was deemed necessary for the appeal to proceed due to the importance of the issues raised.

For clarity, once clinically assisted nutrition and hydration is withdrawn, a person is generally expected to survive no more than two weeks. Following on from the Supreme Court ruling, it has now been agreed that where the family and medical practitioners are in agreement, it is no longer necessary for an application to be made to the Court of Protection.

This decision had also been taken in another case where a woman (M) who had suffered with Huntington disease for over 25 years was permanently residing in hospital and was in a minimally conscious state. The Supreme Court judged that the clinically assisted nutrition and hydration was withdrawn and M died shortly after. Following the decision, Jackson stated “There was no statutory obligation to bring the case to court … A mandatory litigation requirement may deflect clinicians and families from making true best-interests decisions and in some cases lead to inappropriate treatment continuing by default. Indeed, the present case stands as an example, in that M received continued CANH that neither her doctors nor her family thought was in her best interests for almost a year until a court decision was eventually sought.”

However, it is worth noting that the decision in M related specifically to those living on life support, as opposed to all ‘right to die’ cases.

It is becoming clear that there is a shift appearing from the way in which those who are terminally ill are treated by the courts. Previously, an application to the Court of Protection would be required to make a decision on the care received, however, now it appears that the best interests of the terminally ill patient will be put first without the requirement of an application.

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Court of Protection Costs – How to get paid and what happens to your costs?

As many hard-working solicitors are focused on ensuring their clients get the best service, it is possible for them to lose sight of their own costs. Here is a refresher guide to the procedure for getting paid.

The Payment Process

The process begins when the anniversary of the Order/matter completes, and the files are sent to your Costs Lawyer or Law Costs Draftsman; at Clarion, we offer the expertise of both. It is good practice to do this annually, as close to the end of the annual management year as possible (Section 6 of PD19B). This means that no costs are lost if there is an overlap period from the previous months or years.

Secondly, whilst the file is with your trusted Costs Lawyer or Law Costs Draftsman, the Bill of Costs is prepared. A Detailed Bill is required for matters with profit costs exceeding £3,000 and a Short Form Bill is needed for matters with profit costs lower than £3,000. There is no difference in the procedure for the bills – the difference in their names reflects their differing length and the amount of detail that they contain.

The Bill of Costs is then completed and, along with supporting documents, filed with the Senior Courts Costs Office (SCCO) for assessment, after which its returned by the SCCO to your lawyer.

Process for reassessment

Upon reviewing the assessment, if you are unhappy with it, you can lodge a request for reassessment with the SCCO. Here at Clarion, we are more than happy to review any assessments and consider an appeal; we can also lodge the request for reassessment on your behalf. Please get in touch with a member of our Costs Team to find out more.

The process for the request for reassessment is as follows:

  • If you are unhappy with the outcome of the assessment, you can request a reassessment within 14 days of the original assessment.
  • The Bill of Costs is returned to the Costs Officer for reconsideration in respect of the points appealed.
  • The Costs Officer will generally accept where they have made an error. They base their assessment on the points raised before them, so these points need to be justified; Costs Officers have been known to be unpredictable.
  • If you are still unhappy with the assessment, you can proceed to an oral hearing before a Costs Master, but be aware that this can be an expensive and timely process.

When you are happy with the assessment outcome, copies of the assessed Bill of Costs are served on the interested parties (if applicable) who have 14 days to challenge the Bill.

Once the assessment is finalised then a Costs Summary can be completed and filed with the SCCO, allowing the Costs Certificate to be drawn, and you to get paid.

Then the procedure will repeat, as and when the time period (annually) completes, although there are various scenarios which would result in changes to the process as described above. In these circumstances, get in contact with our team and we can assist, where necessary, to ensure that you are paid.

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245, or the Clarion Costs Team on 0113 246 0622.

You can also take advantage of our free telephone advice service – available outside of office hours – by calling 07764 501252.