Tag: Court of Protection

Sandwell and West Birmingham Hospitals NHS Trust v GH [2023] EWCOP 50 

Stephanie KayeLeave a comment

This case involves an application made by an NHS Trust, seeking a declaration that an individual lacked capacity to make decisions about treatment for breast cancer, specifically the undertaking of breast cancer surgery (a mastectomy) and associated care and treatment. 

Background: 

In March 2023 GH, a 52-year-old woman with a prior diagnosis schizoaffective disorder was diagnosed with breast cancer,  and has refused all treatment because of her described ‘delusional’ beliefs. As a response, the Trust that manages her cancer treatment applied to the Court of Protection for declarations and orders that P lacked capacity to conduct the proceedings and to make decisions about whether to agree to undergo the necessary breast cancer surgery and associated care and treatment.

Dr Aziz concluded that there were issues with regards to her mental capacity as determined by the capacity assessment. This was decided on the basis that P had been in regular contact with mental health services since 2006, and had previously been detained under Section 3 of the Mental Health Act 1983 for suffering with psychosis, which involved GH hearing voices on a regular basis. In 2012, she suffered a relapse which was thought to be due to non-compliance with her medication. This resulted in her once again being detained under the Mental Health Act from 2022 to early 2023.

Conclusion: 

Mr Justice Poole stated that he was ‘satisfied that all practicable steps to help GH have been taken without success. There have been a number of discussions with her and professionals have tried to strip down the information to the basic information she requires, using straightforward language. The problem for GH is not that she cannot understand the key concepts involved, it is that she has delusional beliefs that prevent her from understanding and therefore weighing and using relevant information, namely that she has breast cancer’.

The court subsequently concluded that it was in GH’s best interests to undergo the necessary surgery in respect of her breast cancer diagnosis. GH subsequently underwent the mastectomy surgery which she did not resist, the tumour was operable, and she has recovered well from the procedure with no adverse effects noted with regards to her mental health.

Manchester University NHS Foundation trust v Y [2023] EWCOP 51

Tanya ForanLeave a comment

This case involved capacity and the refusal of treatment. It was necessary for the Court to consider P’s independence and his best interests when making a decision.

Following a long history of schizophrenia, P sustained a severe injury and was reluctant to undergo treatment.

Recently, an application was made by the NHS Trust to assess whether P held the capacity to consent to surgery and if he lacks capacity in this matter, to consider whether the proposed surgery was in his best interests.

Background:

By way of background, P is a 42-year-old male who has been diagnosed with Paranoid Schizophrenia. On 27 October 2023, P was found unresponsive in the community; He had sustained multiple injuries and suffered from a seizure. Following this, the P was admitted to his local emergency department where it was determined that P had fractured his left humeral head and dislocated his left shoulder.

P had recently switched his medication, which was used to manage his schizophrenia, from clozapine to olanzapine, which may have deteriorated his condition. Some of the side effects of olanzapine include depression, unusual behaviour and restlessness; it is suggested that this could explain P’s deviant behaviour, such as hostility towards staff.

Paranoid Schizophrenia gives rise to irrational beliefs and delusions which impact the way in which a person interprets their surroundings. As P was diagnosed with Paranoid Schizophrenia, he experiences delusions, which lead him to believe that surgery was unnecessary as it would not prevent future pain. P also believed that he was unable to lose function in his arm and therefore, treatment was not required.

Legal Background:

Dr F is a consultant liaison psychiatrist who met with P on 9 November 2023 to conduct a capacity assessment. The aim of the capacity assessment was to determine whether P held capacity to consent to surgery.

A variety of concerns were raised by Dr F regarding the treatment of P’s schizophrenia; P had not attended follow-up appointments with his community group and there were concerns that he had not taken his antipsychotic medication. Following P’s admission to hospital, he met with the mental health team who identified that since October 2021, P’s condition had deteriorated severely. It was clear that P was unaware of his diagnosis as he declined medication for his paranoid schizophrenia; P also denied any mental ill-health. Therefore, Dr F concluded that P lacked the capacity to refuse the surgery he required, because of his delusions, he was unable to believe the medical rational.

Mr D, a consultant orthopaedic surgeon, described the surgery as the ‘best treatment’ for P’s consistent shoulder pain. Mr D also determined that P did not hold the capacity to refuse surgery. P’s brother and father supported this conclusion by advising Mr D that if P held capacity, he would want to have the surgery.

As P lacked the capacity to comprehend the surgery he required, he was unable to make a decision within the means of Section 3 of the Mental Capacity Act 2005 and subsequently, was unable to provide his consent, or refusal, to the surgery. He therefore lacked capacity in respect of the relevant matter, the giving of his consent for shoulder surgery. Thereafter, the NHS Trust sought a declaration that it was lawful to complete surgery on P’s shoulder and restore function to his arm.

Conclusion:

The Court of Protection ruled the application in favour of the NHS Trust. Despite all the practicable steps taken to assist P in making a capacitous decision, they were unsuccessful as P was unable to assess the benefits and the risks of the surgery he required.  

Subsequently, an Order dated 14 November 2023 was sought declaring that it was lawful to conduct the surgical procedure because it was within the P’s best interests.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

GK & Anor v EE (formerly known as RK) & Anor [2023] EWCOP 49

Ella WilkinsonLeave a comment

The recent case involves an application by EE’s parents, GK and LK, to prevent EE from undergoing any type of gender affirming medical treatment and to instruct an expert psychologist and an expert psychiatrist in those proceedings.

Background

EE is 18 years old and identifies as non-binary, using the pronouns they/them. EE wished to undergo gender affirming surgery. EE’s parents objected to this, stating “we strongly object to our daughter accessing medical intervention to change her body”. They contended that EE wearing a breast binder was a form of self-harm and were concerned regarding EE’s desire to undergo ‘top surgery’, which is a surgery that removes breast tissue and reshapes the chest, arguing that this procedure was irreversible and would leave EE with adverse health consequences. EE’s parents requested a final declaration and consequential Orders from the Court of Protection. 

Legal Framework

EE’s parents argued that the NHS Service Specification stated that any form of social transitioning in adolescents should not be seen as a neutral act but an active intervention that should only occur with the intervention of qualified clinicians, therefore EE did not have the capacity to make the decision to undergo any gender affirming procedure. EE and the local authorities argued that EE was not undergoing any form of gender affirming surgery and no treatments were scheduled for the future, therefore, in line with the Mental Capacity Act 2005, it would not be appropriate for the Court to make any declaration or Order on EE’s parents’ application at the time. 

Conclusion

As a result of the above, the Court of Protection refused the application on the grounds of there not yet being a clear matter as to which the Court could explore and determine the question of capacity under S2(1) Mental Capacity Act (2005). The Court was further satisfied that expert evidence as to capacity was not needed to resolve the issues in the proceedings.

Disbursements & the E-bill

Tanya Foran2 Comments

A disbursement is a payment made on behalf of a client or third party, for which reimbursement is subsequently sought from the client. In COP terms, this means a payment made by the Deputy that needs to be reimbursed by the Protected Party.  

With the new E-Bill, all work now needs to be categorised. This also applies to disbursements. The types of categories in the E-Bill are as follows:  

  • travel expenses 
  • costs draftsman’s fees  
  • counsel’s fees  
  • court fees  
  • bank fees  
  • internal solicitor fees 
  • external solicitor fees 
  • OPG fee  
  • courier fees 
  • land registry fees  
  • expert fees  
  • other  

Many of the items in the list do not need to be assessed and would be better placed in the annual Deputyship report (e.g. court fees) and as such, this has caused some confusion as to what disbursements need to be assessed and what disbursements do not need to be assessed. As a result of the confusion, we obtained guidance from the costs officers.  

According to the Costs Officers, the disbursements that MUST be included in a general management bill for assessment are:  

  • travel expenses  
  • counsel’s fees  
  • bank fees  
  • land registry fees 
  • courier fees  
  • expert fees  

The Costs Officers also advised that internal and external solicitor fees would be dependent on the case and the orders made. Whilst these fees are not usually included in general management files, should this come up on one of your matters and you are unsure, please ask us for further guidance. 

In certain applications (such as Statutory Wills) there will be no Deputyship report where disbursements can be claimed. In these types of bills, ALL disbursements incurred must be claimed within the bill – if not claimed in the bill you will not be able to bill the disbursement to the client. 

For more information, please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com. 

East Suffolk and North Essex NHS Foundation Trust v DL & Anor [2023] EWCOP 47

hawamayetLeave a comment

This was a Hearing to determine the type of treatment plan which should be put in place to feed and hydrate P.

The Protected Party (P) is in her thirties and is currently detained under section 3 of the Metal Health Act 1983 in hospital. P has a mild learning disability, complex PTSD, a dissociative disorder and an Emotionally Unstable Personality Disorder at a borderline level. She has a history of violence towards herself and others, including those who care about her. Since August 2023, P has been limiting her intake of food and hydration. Her current dietary habits are incompatible with life. It has been accepted by all parties, which included clinicians from the Hospital Trust that without clinical intervention, P will die. P’s siblings believed that hospital interventions were traumatic for P, such that they worsened rather than improved P’s condition. The Judge met with P virtually and understood that she expressed a desire to get better. 

The Court weighed up all the factors in the balance and declared that providing hydration and nutrition to P in accordance with a treatment plan and an escalation plan if the treatment plan was not to work, was lawful and in P’s best interests. The plan outlined that P would be electively admitted into a side room on a ward of the hospital, that there would be a physical restraint in place to enable IV access and then a chemical restraint or sedative would be required to get P to a level where she required minimal physical restraint. If P was unable to be safely managed on the ward, the treatment plan outlined that she would be moved to an Intensive Therapy Unit and would require sedation and a PICC line. 

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Sandwell and West Birmingham Hospitals NHS Trust v GH [2023]

maidiedeightonLeave a comment

This case involved GH who is a 52 year old woman with a diagnosis of schizoaffective disorder. GH was diagnosed with breast cancer in March 2023 however she does not believe the diagnosis and refuses all treatment.  

The problem was not that GH could not understand the key concepts involved, it was that she had delusional beliefs that prevented her from understanding that she has cancer and weighing this information up. 

Due to the refusal of treatment, the NHS Trust (who were responsible for managing her treatment) applied to the Court for declarations and orders that GH lacked capacity to conduct these proceedings. GH also was unable to make decisions on whether or not to undergo breast cancer surgery therefore the Trust applied that it was lawful and in her best interests for the Applicant to deliver care and treatment in accordance with her care plan. This involved sedation, anaesthesia and a right mastectomy. 

The Application was considered and discussed as long ago as May 2023. This raised concerns as it was made nearly seven months after diagnosis and so shortly before the listed surgery. 

Following the application, the Court made the declarations and concluded that it was in GH’s best interests to undergo the proposed surgery. The Trust was also ordered to pay 80% of the costs of the Official Solicitor because of the unreasonable delay in the Trust making the application. 

You can find out more about our services here or you can contact Maidie Deighton at Maidie.Deighton@clarionsolicitors.com for further information.

Guideline Hourly Rates in the Court of Protection

Laura SugarmanLeave a comment

As you may be aware, the Master of the Rolls has accepted the recommendations of the Civil Justice Council Costs review. As per the recommendations, the Master of the Rolls has confirmed that ‘the 2021 Guideline Hourly Rates will be uplifted for inflation from 1 January 2024 in accordance with the Services Producer Price Index.’ The guideline hourly rates will then be uplifted annually by the Services Producer Price Index.

The new hourly rates are as follows:

The increase is approximately 6-7% depending on your geographical location.

What impact will the new Guideline Hourly Rates have on Court of Protection?

The new guideline hourly rates will come into effect from 1 January 2024. In order to ensure that COP Practitioners are able to claim these within bills, it is imperative that all retainer letters and client care letters are updated to reflect the new hourly rates. Without this paperwork, the practitioner will be unable to claim the new hourly rates as they would be in breach of the indemnity principle.

The indemnity principle states that ‘a successful party cannot recover from an unsuccessful party more by way of costs than the successful party is liable to pay his or her legal representatives’. When applied to Court of Protection costs, this means a Deputy cannot claim costs higher than those stated in their client care letter or retainer letter. Therefore, we recommend that all paperwork be updated to reflect the new guideline hourly rates in advance of 1st January 2024.

Please be aware that the retainers cannot be backdated, and therefore the rates cannot be claimed prior to 1 January 2024. It is also the case that if the client care letters are updated post 1 January 2024, the guideline hourly rates cannot be claimed prior to the date of the updated client care letter.

If you have any queries you can contact Laura Sugarman at Laura.Sugarman@clarionsolicitors.com for further information.

Understanding the E-bill once assessed

elliescallyLeave a comment

At Clarion, we prepare over 2500 Court of Protection bills of costs each year to be assessed by the Senior Court Costs Office. We also review the bills once they have been assessed, monitor the common reductions and give advice to our clients on the outcomes of their assessment.

With the introduction of the e-bill, it can be more difficult to understand what has been reduced and the total costs allowed upon assessment. Below is a quick guide on how to understand the Costs Officer’s reductions.

Time allowed

Column K on Tab 6 of the e-bill which is labelled “Time Allowed” shows the amount of units allowed by the Costs Officer for each respective entry. If the amount of units have been changed from the original amount, the box will be highlighted as yellow and the new amount allowed will have been entered by the Costs Officer.

Fee earner allowed

Column M on Tab 6 of the e-bill labelled “FE Allowed” shows the fee earner/grade of fee earner. Again, if the fee earner has been changed by the Costs Officer, the box will be highlighted as yellow. The Costs Officer will use “A” for a Grade A fee earner, “B” for a Grade B fee earner, “C” for a Grade C fee earner and “D” for a Grade D fee earner. Please review Tab 4 which is where the fee earners are shown to ascertain whether all the rates have been allowed as claimed in the original bill. If a fee earners rate has been changed, the box will be highlighted as yellow and the new rate will have been entered by the Costs Officer, which will subsequently apply to all work entries shown on Tab 6. If you scroll down on this page, the Grades used and created by the Costs Officer will be shown.

The Costs Officer’s Comments

Column Z called “Finding text” shows the reasons as to why the Costs Officer has reduced the entry. Tab 17 deciphers the codes the Costs Officer may use and are shown below. These codes cover the most common reasons for reductions seen across COP assessments:

Total allowed

Tab 12 is now a pre-populated bill summary document based on the changes made in the earlier tabs, and shows clearly how much the profit costs were originally, and how much has been allowed on assessment, as well as the allowed VAT amount and whether the Costs Draftsman’s fee has been allowed or reduced.

Please get in touch with us at Costs.Support@Clarionsolicitors.com if you require any assistance to understand the e-bill once assessed. We can help provide you with advice in relation to whether we think you should appeal the reductions, what you can appeal and what you cannot appeal. We can also assist with drafting a request for reassessment letter. It is very important that you understand the reductions made to ensure that you’re happy with the outcome of the assessment.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

Court fee consultation – have your say!

Ella WilkinsonLeave a comment

The Ministry of Justice have recently published an open consultation regarding the proposed implementing of increases to various court and tribunal fees, citing factors such as the rise in the consumer price index and the running costs of HMCTS. The intended increases are 10% across a range of court and tribunal fees in several jurisdictions, to support the continued delivery of services and to reduce the level of subsidisation required from taxpayers.

Within the proposals, there is an intention to also establish a routine approach to reviewing and amending fees every two years, to take into account any changes in the running costs of HMCTS, as well as the wider financial position in respect of the economy and pricing.

The consultation began on 10 November 2023 and will end on 22 December 2023, so we would invite you to review the proposals and submit your views ahead of this deadline, as Court of Protection fees are included within the changes being considered. The Court of Protection specific proposals are set out in the below table:

ItemCurrent FeeProposed New Fee
Court of Protection application£371.00£408.00
Court of Protection appeal£234.00£257.00
Court of Protection hearing£494.00£543.00
Court of Protection filing for detailed assessment£87.00£96.00
Appeal against a Court of Protection costs assessment£70.00£77.00
Request to set aside a Court of Protection costs certificate£65.00£72.00

You can review the full consultation report via the link below for further information, and this also includes information as to how you can get in touch to submit your views (see pages 17-19 in particular).

Click to access tribunal-fees-consultation-web-accessible.pdf

You can find out more about our services here or you can contact Ella.wilkinson@clarionsolicitors.com for further information, who is an Associate within the Costs and Litigation Funding Department at Clarion.

Proposals for change to Practice Direction on Interim Remedies and Security for Costs

Bethany CollingsLeave a comment

Introduction

At present, the Civil Procedure Rule Part 25 has two Practice Directions: Practice Direction 25A and Practice Direction 25B. The Civil Procedure Rule Committee confirmed within their most recently approved minutes (attached below) that a new shorter Practice Direction will be introduced. 

Agreed key points include:

  • Applications and evidence (Rule 25.3) should contain a signpost to Part 23 (general rules applications and court orders) to assist users;
  • Under evidence (Rule 25.7) it was noted that the reason why notice was given is a material fact and an obligation already exists, without the need for it to be expressly provided for in the rules;
  • There is a need for the supervising solicitor provision under the provision for service, timing and individuals involved (Rule 25.17) is to be redrafted;
  • Form numbers should be replaced with “approved form”;
  • Other drafting revisions as noted by the Secretariat, to be adopted for further review and resolution, prior to consultation; and
  • Remaining provisions within the Practice Directions that are not within the draft reformed rules, could be removed altogether because:
  1. the reference to out of hours contact details can be done by a signpost and appropriate web information;
  2. the reference to finding a Supervising Solicitor from the Law Society or London Solicitors Litigation Association can be removed, because it is in relevant Court Guides;
  3. the statement about privilege is a statement of the law and does not need to be repeated in a Practice Direction in this way; and
  4. the statement that applications for interim remedies in IP cases ought to go to the Chancery Division does not need to be made here because that is the effect of the relevant rules already.

Post meeting it was confirmed that paragraph 25.1(1)(p) (the reference to continuations subject to guarantees under Article 9 of Directive 2004/48/EC) can be removed because it is unnecessary. It was confirmed that the remedy is available in the courts irrespective of its being listed in that rule in that way and the reference to the Directive is potentially confusing.

There will also be a review of courts forms, specifically the:

  • N244 Application notice;
  • N16A Application for injunction;
  • N361 Notice of application for relief in pending action;
  • PF43 Application for security for costs; and
  • PF44 Order for security for costs.

Bethany Collings is a Paralegal in the Costs and Litigation Funding Team at Clarion Solicitors. You can contact her at bethany.collings@clarionsolicitors.com or on 07774951949.

CPR Committee MinutesDownload