Tag: Court of Protection

Reductions to COP assessments and what you need to know about them

Casey McGregorLeave a comment

At Clarion, we prepare over 2500 Court of Protection bills of costs per year to be assessed by the Senior Court Costs Office. We also review the bills once they have been assessed and monitor the common reductions. Based on our experience, we have identified the 5 most common reductions and the reasoning behind the same. The below 5 reductions are in line with published case law and are therefore not likely to be allowed if a re-assessment is requested.

Arranging payments

You may notice that arranging payments are reduced throughout the bill of costs. This is in line with the Case of Jamie Walker (2002) whereby Master O’Hare defined checking the file to ensure an invoice has not already been paid, checking sufficient funds are in the account and writing a cheque and getting it signed as non-fee earner work. Arranging payments and considering invoices are typically reduced to 3 minutes within the bill of costs at Grade D rates in line with this. We therefore suggest payments and considering invoices are delegated to a Grade D fee earner. This is something that the Professional Deputies Forum would like to challenge in the future, as significant payments require consideration and often approval above Grade D rates. We hope that this case law will be reconsidered in the future.

Enclosure letters

Where you may have sent a letter enclosing payment of an invoice or an email confirming settlement of an invoice, this will be classed as an ‘enclosure letter’. In line with the case of Leighanne Radcliffe (2004), letters were reduced from the standard rate of 6 minutes to 3 minutes within the bill of costs. We therefore recommend that enclosure letters are delegated to a junior fee earner and the time is limited where possible to prevent overbilling.

Two fee earners at an attendance

If you have claimed two fee earners in attendance, in our experience, it will only be allowed in exceptional circumstances. Typically, the second fee earner’s time is struck out or reduced. In the case of Garylee Grimsley (1998) and further to R v LegalAid Board Ex Parte Bruce (1991), two fee earners at an attendance were reduced as it was deemed to be duplicative work. It stated, “in so far as expense is involved in adding to this stock in trade, it is an overhead expense and not something that can be charged to the client”. Therefore, we recommend that two fee earners should only be claimed at an attendance whereby it is necessary and reasonable to do so, as there is a higher cost to the Protected Party. Cases where two fee earners may be considered reasonable are where there is a significant safety risk or the second fee earner has different expertise, but this time is still subject to assessment and it’s important that the reasoning is clear within your file notes to justify the attendance of both fee earners.

High level of contact with the Protected Party

You may see a reduction occur whereby there is a high level of contact with the Protected Party, as it is seen to be the Deputy’s duty to keep the costs at a minimum for the Protected Party. Excessive contact would lead to a higher level of costs, which is not in the best interests of the Protected Party. A reduction could occur in line with the case of Trudy Samler (2001). This case raises the question of whether the contact was instigated by the Protected Party and whether the Deputy should be paid for such contact. Excessive contact with the Protected Party could therefore be reduced due to this case and we recommend that Deputy’s keep an eye on this. We recommend that Deputies try and manage the levels of contact with any party and involve other professionals to support the Protected Party or their family in order to manage costs.

Record keeping

Work in relation to updating the Protected Party’s financial records is typically reduced by the Costs Officers on assessment. In the case of Philpott (2015- unwritten), Master Haworth stated “It seems to me that the inputting of data into P’s ledger is not fee earning work. At most it is bookkeeping which, to my mind, is an overhead of a solicitor’s practice. This work has to be distinguished from for example, reviewing or perusing the data to come to a decision as to what then needs to be done with a P’s funds. To my mind that may well amount to fee earning work for which the solicitors can charge separately at the appropriate rate.” Therefore, we recommend that the work is distinguished in this way in order to avoid the reduction on assessment and the word ‘updating’ should also be avoided.

We are happy to review the assessed bills and provide advice to any professional Deputy who is not happy with the outcome of their assessment. Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com

Manchester University Hospitals NHS Foundation Trust and JS and Manchester City Council [2023]

Leah MorrisLeave a comment

This case concerns a 17 year old who had been detained under s2 of the Mental Health Act but was deprived of her liberty when that authority lapsed.

Background of P

By way of background, P has a diagnosis of Autistic Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), learning disability and an attachment disorder. Due to P’s complex mental health needs, this meant that she was in danger by her own hand as well as at the hands of others.

Overview

P had been admitted to a specialist child and adolescent psychiatric unit as an ‘informal patient’, meaning she had been assessed as having capacity to consent to admission. P was discharged to the care of her mother over concerns she could become institutionalised. Following this, P ran away from home and into traffic. She was detained by the police who were so concerned about her mental health that they used their powers under s136 of the Mental Health Act to detain her and take her to a place of safety.

It was here that a Mental Health Act assessment was carried out and P was assessed as not requiring admission. P was therefore discharged back into her mother’s care with a community based care and treatment plan.

Several days later, P was detained under s2 of the Mental Health Act following an overdose. After recovery, she remained on the ward even after authority to detain expired. It was agreed that being on the ward was inappropriate and detrimental to her health.

P’s Care and Treatment in Hospital

Due to P’s attempts to self-harm, the hospital put in place a ‘Care Plan of Restrictions’. Incidents were recorded by the hospital and HHJ Burrows considered these when providing the judgment.

Court of Protection Application

From the date that the s2 expired, P was not subject to any lawful regime of detention. P was subject to a regime of detention due to the fact that she was under continuous supervision and control and was not free to leave the ward, in light of the ‘Care Plan of Restrictions’ that were imposed. HHJ Burrows accepted that during that time, P lacked the capacity to make decisions in regard to her care and treatment due to her mental health conditions. Because of this, P was therefore not able to consent to her residence, care, treatment or to being deprived of her liberty.

On 10 February 2023, the hospital made an application to the Court of Protection seeking several declarations in relation to P remaining at the hospital in her best interests and to be subject to the restrictions contained in the care plan.

Judgment

HHJ Burrows declared that once the s2 authority had expired, P had been unlawfully deprived of her liberty. HHJ Burrows considered P’s capacity and the capacity assessment conducted in order to assist with the judgment.

Conclusion

It was concluded that P was ineligible to be deprived of her liberty in the hospital under the Mental Capacity Act. She was within the scope of the Mental Health Act under Case E. HHJ Burrows concluded that for the reasons given, P could have been detained and treated under the Mental Health Act.

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

Case law surrounding fluctuating capacity – Wrightington, Wigan and Lee Teaching Hospitals NHS Foundation Trust v SM

Tanya ForanLeave a comment

Before Mr Justice Cobb on 18 November 2022, in the Royal Courts of Justice the issue of fluctuating capacity was considered in a case involving a minor (aged 16) and the safe delivery of her unborn baby.

The case involved SM who was a looked after 16-year-old who resided in a supported living complex in Wigan. SM received care from a team of support workers. SM had a history of sexual exploitation and suffered from a complex post-traumatic stress disorder. SM had a history of hospital admissions as a result of her mental health and declined medication on the basis that she feared the medication would cause her mental health to deteriorate further.

SM was deemed as a looked-after child within the definition of section 20 of the Children Act 1989. She was in the advanced stages of pregnancy and had resisted the need for a caesarean operation to be performed to ensure the safe delivery of her baby. Her antenatal care had been good and aside from her mental health the pregnancy had been uncomplicated. However, during the pregnancy she had shown signs of concerns and fear of giving birth. Caesarean section had been attempted on three separate occasions together with an attempt at induction, whereby SM had been unable to go through with the procedure due to fear and anxiety.

The applicant, the NHS Trust sought relief from the Court including a declaration that SM lacked capacity to make decisions regarding her obstetric care and treatment; the Court’s authority to proceed with the proposed plan of a caesarean section operation and to deprive SM of her liberty in order to achieve the safe delivery of the baby.

It was held that SM had capacity to conduct the proceedings and the Official Solicitor declined to act as litigation friend. The Official Solicitor also declined to act as an advocate to the Court. SM instructed a firm of Solicitors to represent her in the proceedings.

Mr Justice Cobb reviewed the evidence before him including various reports and oral evidence from the anaesthetist, obstetrician, psychiatrist and social worker.

Reference was made by Mr Cobb to a previous case of GSTT v SLAM and R (2020) where Hayden J held that “The inviolability of a woman’s body is a facet of her fundamental freedom but so too is her right to take decisions relating to her unborn child based on access, at all stages, to the range of options available to her.” It was further held that “the Court is required to step in to protect her, recognising that this will always require a complex, delicate, and sensitive evaluation of a range of her competing rights and interests.”

The Judge also held that the longer the situation went on, the greater the risk of stillbirth and this outcome would have a detrimental effect on SM, in view of her fragile mental health. The NHS Trust had a team of experts on hand to deliver the baby by caesarean section, against SM’s will, subject to the outcome of the hearing.

Mr Cobb said he was satisfied having given thought to all the evidence that it was clear that SM had lost capacity over the preceding days when she had become overwhelmed by anxiety and stress and should the situation arise again, if the welfare of the mother and baby was compromised to find that the caesarean section was necessary then it would be lawful for the hospital to go ahead with the procedure.

The NHS Trust provided details of the three options available which included vaginal birth, caesarean section under local anaesthetic and caesarean section under general anaesthetic. It was held that whilst previous examinations had not pointed out any concerns, in relation to delay, regular monitoring may not show any concerns with the baby and in view of the practical difficulties it was anticipated that some level of restraint may be necessary. It was also considered that SM would not be able to cope with spontaneous labour. Dr PA for the NHS Trust also explained that the chances of SM cooperating were low, and that further induction may cause distress and should not be embarked upon.

SM had submitted prior to the hearing that she wished to be able to deliver her baby with the least intervention and that she wanted to be aware and awake on delivery of the baby. She also maintained that she should be allowed to proceed to full term and would attend at the hospital for daily check ups if that was determined necessary. SM advised that the previous attempt at induction had been uncomfortable and she confirmed that she would be willing to give it a further try as she was now aware of the implications. SM also said that she had felt bullied by the NHS Trust. At the conclusion of the hearing SM agreed to a further attempt at induction failing which a caesarean section procedure would be performed.

Dr ZS concluded that SM had fluctuating capacity and was without capacity when overwhelmed with stress and anxiety.

Mr Cobb gave weight to SM’s wishes and considered that she was more aware of the circumstances and held that an induction should be attempted one further time. He ordered that should she become overwhelmed a caesarean section under general anaesthetic would be in her best interests to safeguard the well-being of SM and her baby.

SM was vaginally induced following the hearing and safely delivered a baby girl the following day.

The full judgement can be found here –

https://www.bailii.org/ew/cases/EWCOP/2022/56.html

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

A Local Authority v PG & Ors [2023] EWCOP 9

hawamayetLeave a comment

 

This case concerns P’s views in relation to contact with care workers and receiving care where P’s capacity may fluctuate.

Background

P is a 34-year-old woman with a diagnosis of autism spectrum disorder, Emotionally Unstable Personality Disorder, and mild learning disability. She currently lives in a supported living placement. Before then, she lived with her mother where a deterioration in her mental health led to her being admitted under s2 of the Mental Health Act. There had been a number of incidents involving P around drugs, alcohol and approaching younger men in public and it was necessary for the Judge to consider whether P had capacity.

Views of the Social Worker and the Medical Expert

At the hearing, a social worker talked of potential triggers for P’s behaviour and Dr Jordan King, who is a Highly Specialist Clinical Psychologist at the Intensive Support Team of the Adult Neurodevelopmental Services for a NHS Trust, prepared a report for s.49 Mental Capacity Act 2005 purposes. Dr King gave oral evidence to the Court and was cross examined regarding P’s fluctuating capacity and the circumstances in which this occurred. Dr King explained that when P was calm, she could assess and weigh up risks but when faced with a trigger, P would become agitated and would struggle with weighing up and understanding information.

Conclusion

A Judgement was made that P should be deemed as lacking capacity, but emphasis was placed on the fact that when being assisted by the care workers, P’s autonomy should be protected, and interference should be kept to minimal levels to keep P safe.

The Judge considered the complexities of the fluctuating capacity for P and the difficulties the care workers would face in having to exercise a complicated decision-making process in order to decide whether at any individual moment P did or did not have capacity. This would then vary depending on the individual care worker, and how much of the particular episode they had witnessed. The Judge deemed that the result of this would fail to protect P, probably have minimal benefit in protecting her autonomy and in practice make the law unworkable.

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

The use of electronic bills in Court of Protection cases

maidiedeightonLeave a comment

Senior Costs Judge Andrew Gordon-Saker has now give some feedback on the use of the COP electronic bill which was implemented on 1 November 2022. The conclusion of the pilot is that electronic bills in this format should continue, which is great news for solicitors.

30-40% of Court of Protection bills were received in the electronic form and these have been a success in terms of the efficiency in undertaking assessments. The turnaround of the electronic bill of costs has been approximately 6 weeks, compared with a 6 month turnaround of the traditional bill.

The pilot is due to end on 28 April 2023 for all involved in Court of Protection cases following 5 months of review and this now means that Deputies, legal representatives and other legal professionals will file their bill in the electronic spreadsheet form using the approved template.

New bills and existing cases (with a CE File reference number) can be submitted to the Court using this method for assessment.

The SCCO has emphasised the importance of the filing the bill with the options beginning with “COP-E” however a previous blog prepared answers many common questions:

E-Bill FAQs – How does the new Court of Protection E-Bill work?

Please see the judiciary website for the approved template, under Guidance and Resources.

There will be some minor changes to the templates which will be uploaded on the judiciary website so please ensure that this template is used. Bills not compatible with the format will be rejected.

The best method of uploading the documents relating to the bill is as a single PDF with a chronological index via the Document Upload Centre. E-bundles are encouraged and are incredibly useful for those Deputies who work on a paperless or paper-light basis.

Requests for a link to upload files should be sent to: scco@justice.gov.uk.

As a team at Clarion, we were heavily involved in this pilot and we are pleased to see this change being implemented on a permanent basis. It is a great development for Deputies and their teams, speeding up turnaround times for assessment and simplifying the administration involved in the process. Clarion will continue to prepare all bills of costs in E-Bill format.

Additional information on E-Bills can be found here: https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/

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

Sunderland City Council v Macpherson (2023) EWCOP 3

Ella WilkinsonLeave a comment

The case of Sunderland City Council v Macpherson (2023) EWCOP 3 concerned the various orders which prevented FP’s mother from filming her and posting it on social media, as she lacked the capacity to give consent. This application by Sunderland City Council related to five alleged breaches of those orders amounting to contempt of court by Lioubov Macpherson (FP’s mother) as defendant in the proceedings. The judgment also deals with press reporting of the proceedings.

Background

FP was diagnosed with paranoid schizophrenia, experiencing auditory hallucinations including that people were going to kill her and to harvest her internal organs. She has been in and out of hospital over the past few years and since November 2021 has been living at her current care home, placement 3. FP’s schizophrenia has resulted in her resistance to treatment, and she requires care 24 hours a day. She continues to suffer from delusions and experiences  episodes of screaming. FP lacks capacity to make decisions regarding where she should live, her care, and her contact with others.

FP’s mother had been criticised in earlier proceedings (as seen in the previous judgment in SCC v FP and others [2022[ EWCOP 30)  over her behaviour towards care workers and attempts to control FP’s care, while also lacking a basic understanding of the impact of FP’s mental disorder. FP’s mother often told FP that the care staff were abusing her, and that she did not need the medication that they were providing her, as she did not have schizophrenia.

The defendant’s contact with FP was restricted and it was also ordered that the defendant  would have restricted contact with FP’s care staff and medical professionals. The judge also extended various orders prohibiting FP’s mother from recording FP and posting that content on social media, as it was considered to be demeaning and a breach of FP’s privacy.

Proceedings

The application to commit was originally brought in three applications made in November and December 2022. Those applications contained eleven alleged breaches of the injunctive orders made on 30 June 2022.The defendant admitted to the eleven alleged breaches at the first hearing of committal applications on 8 December 2022, however at the hearing on 16 January 2023, Sunderland City Council indicated that it did not seek to persuade the court that six of the admitted breaches constituted contempt of court.

Poole J reviewed the range of sentencing options available to him in the circumstances. The Judge noted that the defendant  ‘almost dared the court to sentence her’, however, that to imprison her would not be in the best interests of her elderly husband, of whom she acted as primary carer, or in the best interests of FP, as it would cause her further distress and upset and could lead to the deterioration of her mental state.

Conclusion:

Despite FP’s actions being an imprisonable offense, Poole J concluded that under the mitigating circumstances, alongside the fact that the posts had been removed from social media, he would suspend FP’s sentence of 28 days for 12 months. Poole J also concluded that the defendant could be names given the committal proceedings and ordered the amendment of the Transparency Order accordingly. 

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

Did P have capacity to make decisions surrounding his residence, care, sexual relations and access to social media given his diagnosis?

elliescallyLeave a comment

The case of DY & A council & A NHS Trust [2022] EWCOP 51 concerned whether DY had capacity to make decisions surrounding his care and support arrangements, given the threat posed by his sexual behaviour to the public. The application also dealt with the upcoming expiry of the standard DOLS authorisation in place for DY.

Background

Shortly after DY was born, he was the subject of care proceedings and has been throughout most of his life. As a result, a Care Order was granted on the basis that he would return home to live with his parents. At the age of 10 years old, DY began demonstrating sexualised behaviour and was self-harming. As a result of having a stoma bag fitted when DY was a teenager, he suffered from ill health.

In DY’s mid-teens, he suffered from serious mental health issues which included exacerbated self-harming and more frequent suicide attempts. In 2011, DY was diagnosed with Autistic Spectrum Disorder and Generalised Anxiety Disorder and Paedophilia. As a result, in 2016, DY was detained under Section 3 of the Mental Health Act and this meant that he was placed at a hospital unit. A year after, in 2017, it was determined that DY lacked capacity to consent to his detention and treatment under the Mental Capacity Act. Also, in 2017, DY pleased guilty to two offences of sexual assault of a girl aged under 13. As a consequence, he received a 26-month Youth Rehabilitation Order, was placed on the Sex Offenders Register and was prohibited from having contact with children under 16. He was also determined to pose a risk to his mother.

In 2019, he moved to his current placement and was still deemed as lacking capacity to make decisions about accommodation and care. Several provisions were put in place due to his sexualised behaviour.

Proceedings

On 25 May 2021, in line with Section 21 of the Mental Capacity Act 2005, proceedings were issued that challenged DY’s deprivation of liberty at his placement. The grounds of the challenge were that the mental capacity qualifying requirement in paragraph 15 Schedule A1 and the best interests requirement in paragraph 16 Schedule A1 were not met.

Dr Christopher Ince, who was a Consultant Psychiatrist currently working in Forensic Learning Disability and Autism Services at Northgate Hospital in Northumberland, was instructed to prepare a detailed report on the DY’s capacity to take part in the proceedings and whether he had capacity to make decisions regarding his residence, care, contact, sexual relations and access to social media. The report was produced on 14 April 2022. He concluded that DY had capacity in relation to all the domains set out.

Discussions and conclusions

The Judge decided that DY had capacity to make decisions as to his care and support. He stated that “In arguing otherwise, it seems to me that the respondents are setting the bar of capacity at too high a level”.

The Judge deemed that DY understood the risks he posed and he expressed his fear of what would happen to him if another offence was committed. The Judge expressed that he understood why the parties were concerned, but that any further offending by DY was a matter to be dealt with under the criminal justice system.

Conclusion

The standard authorisation was terminated in accordance with paragraphs 15 and 16 of Schedule A1 Mental Capacity Act which meant that DY would no longer be subject to a Deprivation of Liberty Authorisation.

DY would continue to be offered the same care package which included help with his daily living and medication, and he was strongly encouraged to continue to be accompanied by at least one care worker whenever he went out.

DY remained on the sex offenders register and was offered the psychological help and therapy that he so clearly needed as a matter of urgency, for his own benefit and of course the protection of the public.

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

E-Bill FAQs – How does the new Court of Protection E-Bill work?

Laura SugarmanLeave a comment

From 1 November 2022 the COP E-Bill came into force. This will look slightly different to the Bills that COP practitioners are used to and will include some additional information including various categories and a separate part for the inclusion of P’s assets. We recently participated in a successful pilot scheme and will be submitting all Bills from 1 November 2022 in this new format.

Below are some common queries about the E-Bill and how to resolve these.

How does the Deputy or person authorised by the firm to sign on behalf of the Deputy certify the Bill of Costs?

The Deputy or authorised person is still required to certify the Bill as before. However, on the new E-Bill format the legal representative’s name can be typed or printed into the ‘Certification’ tab. Please be aware that the ‘Post Assessment Certificates’ section is only to be certified once you are requesting the Final Costs Certificate following assessment.

Where will information relating to any interim payments taken be entered?

Similarly to the PDF Bills, the E-Bill requires you to disclose any interim payments taken on account of costs for the period. This information should be entered on the ‘Certification’ tab in the first box.

How will the new E-Bill be E-filed using the SCCO portal?

The process for E-filing the Bill of Costs remains very much the same. You are still required to submit the certified Bill, Order, certified N258B and disbursement evidence as before, but use the new options on the E-filing service beginning ‘COP E-Bill’. If the Bill and N258B are not certified by an authorised person, then the submission will be rejected by the SCCO.

What will happen to the E-Bill on assessment?

Once the E-Bill is received and approved by the SCCO, it will be allocated to a Costs Officer who will review and assess in the usual way. The Costs Officer is able to make changes to the Bill where appropriate and the E-Bill will recalculate this automatically. The Costs Officer will use a series of codes and mark these on the E-Bill so that you can determine the reasons given for the reductions.

How will the E-Bill be returned following assessment?

The E-Bill now includes a contact email address section on the front sheet, which should be completed when drafting the Bill. Following assessment, the E-Bill will be sent via email to the address provided.

How should the E-Bill be served on interested parties where required?

If you are required to serve the Bill on interested parties then this should be provided to them as a PDF version of the E-Bill. Please request this from your Costs Draftsperson who would be more than willing to assist.

How can I ensure my E-Bill is compliant with new the new requirements?

There are some new requirements when using the E-Bill format that are likely to cause some minor issues if they are missed. Below are some ways in which you can assist your Costs Draftsperson in ensuring the E-Bill is ready to be submitted to the SCCO.

SCCO reference – there is a section on the front sheet that relates to the unique SCCO reference for each matter. This can be inputted prior to submission to the SCCO to help avoid any rejections based on the matter already existing. Please provide the SCCO reference to your Costs Draftsperson if known.

OPG105 estimated costs – there is an increased emphasis on providing the OPG105 estimated costs for the period when using the E-Bill. Please provide the OPG105 costs estimate to your Costs Draftsperson so that this can be included in the Bill.

P’s assets – the E-Bill now includes a specific section relating to P’s assets so that the Costs Officer can consider these. Please provide this information to your Costs Draftsperson and they will include it in the Bill accordingly.

Fee earner rates – please provide a breakdown of the fee earners who have worked on the matter and their date of professional qualification so that these can be included in the Bill.

Amendments – if you require any amendments to the E-Bill please consult your Costs Draftsperson. The E-Bill uses complex algorithms to calculate the totals within the Bill and any changes made could affect these and corrupt the Bill. We therefore recommend that you ask your Costs Draftsperson to make any amendments you require, rather than attempting this yourself, as it could cause issues with the E-Bill later down the line.

The introduction of the COP E-Bill will revolutionise the COP sector and should have a positive impact on assessment times and also result in less administration time following assessment, as the Bill is automatically recalculated in this format.

Additional information on E-Bills can be found here: https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/

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

Gloucestershire County Council and AB (By Her Litigation Friend, The Official Solicitor), SB and NHS Gloucestershire Integrated Care Board

elliescallyLeave a comment

This recent case concerned the care plans in place for an individual, AB, given the risk of her self-harming. Further points surrounding her capacity to access the internet and social media were also considered within the case, as well as her ability to access implements that could be used to inflict self-harm.

History:

In September 2022, a standard authorisation was granted by the Local Authority (Gloucestershire County Council) in respect of AB’s care and support arrangements within Placement A, following her reaching the age of 18. 

The same was challenged by the Official Solicitor who, on behalf of AB, challenged several matters such as whether the mental capacity requirements had been met, whether the best interests requirements had been met, and asked the Court to consider the period during which the standard authorisation was to be in force and the conditions subject to which the standard authorisation was given. Observations were also made regarding the relevance of Article 2 European Convention on Human Rights, and a duty which had arisen for the Local Authority that would require them to take reasonable steps to provide protection to AB from a real and immediate risk to life.

A hearing was listed for 28 and 29 September 2022, and the parties and the Court had identified the issues for determination as follows: whether AB had capacity to access the internet, and if AB did lack capacity, what was in her best interests in this regard and was the best interests qualifying requirement met in respect of AB’s care and support arrangements.

Whilst preparing for the hearing, it was revealed that the AB was self-harming. AB was subject to significant levels of restraint when her self-harm was of concern to her care staff. There was an incident on 18 August 2022, whereby AB self-harmed by cutting her neck region. This resulted in a “Safe Self Harm Care Plan (Cutting)” being prepared by the care provider.

Hearing

On 28 September 2022, the Court heard evidence from a registered mental health nurse who had implemented the care plan and an independent expert, Dt Ty Glover.

On 29 September 2022, the Senior Judge attend upon AB via Microsoft Teams, and it was noted that AB expressed confusion about the “lack of consistency in how she was permitted to self-harm and when she was not, and a feeling that she was not properly supported whilst at the same time overly restricted.”

Following various pieces of evidence provided by several parties, it was agreed that a risk assessment, an immediate review of practices, and consideration in relation to whether tolerating a degree of self-harm from AB was clinically appropriate and in her best interests needed to be undertaken urgently.

The Official Solicitor stated that the practice in which the carers were able to implement their own care plans was “clinically, ethically and legally unsustainable”. Also, the Official Solicitor questioned the legality with regard to whether a self-harm arrangement could be authorised by way of a schedule one.

Following this, an applicant at the Local Authority submitted that a social worker would be appointed for AB urgently. In addition, it was noted that the Deprivation of Liberty Safeguards Assessor and best interests assessor were not aware of the support arrangements around restraining AB and wider support provisions in place.

It was discussed and considered between the parties whether AB’s care arrangements should revert to how they were previously or whether a new approach should be implemented. The Senior Judge invited the parties to consider a hybrid approach.

In relation to whether AB had capacity to access the internet and social media, it was put forward by the Official Solicitor and the other parties that in the particular circumstances of AB, it was unknown whether AN would be subject to self-harm videos and encouragement of the same.

Outcome

At the outcome of the hearing, it was ordered that the standard authorisation dated 26 September 2022 was terminated.

It was ordered and directed in the interim that:

  • AB would reside in Placement A conforming to the arrangements set out by the Local Authority and under the care plans made in September 2022.
  • AB’s access to social media and the internet may be restricted when in distress
  • AB’s access to items in which she could use for self-harm would be limited in her best interests
  • Any changes to make AB’s care plan more restrictive must be brought before the Court
  • That the restrictions in place pursuant to the care plan in place for AB amounted to a deprivation of her liberty, authorised as being in her best interests and as necessary to prevent harm to her

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

The Electronic Bill Pilot in the Senior Courts Costs Office

maidiedeightonLeave a comment

From 1 November 2022 until 28 April 2023, professional Deputies appointed by the Court of Protection, their legal representatives and other legal professionals involved in Court of Protection cases are able to submit bills in respect of general management and other applications where the relevant authority has been obtained from the Court of Protection in electronic spreadsheet form, known as the E-Bill.

Approved templates for use are available via the judiciary website, https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/ and E-bills are to be filed using CE File. When filing an E-Bill, the options titled ‘COP-E’ in CE File should be selected, and once assessed by the Costs Officers, the bills will be returned electronically.

In accordance with the start of the pilot scheme due to commence on 1 November 2022, the Costs Team at Clarion will be fully prepared for this change and will proceed with drafting E-Bills on behalf of our clients. 

Please read Stephanie Kaye’s blog ‘The COP E-Bill – the good, the bad and the technical’ for further information regarding how the E-Bill will work, how to prepare the bill and the impact on COP practitioners.

The COP E-Bill – the good, the bad and the technical

If you have any questions, please do not hesitate to contact Maidie Deighton at maidie.deighton@clarionsolicitors.com.