Emma Sutton

Call 2006

Overview

Emma is a recognised specialist in Public and Administrative law (including human rights and constitutional law) and the Court of Protection. She is instructed by a wide range of public bodies in complex and unusual cases including Local Authorities and NHS bodies in England and Wales, the Official Solicitor, the Public Guardian, CAFCASS, the Welsh Government, IMCA’s, professional RPR’s, Charities, and private individuals including Deputies and Attorneys. Emma is acknowledged for her meticulous approach to cases, her ability to present complex legal arguments in a straight forward manner, and highly regarded as a tenacious advocate who is exceptional with both professional and lay clients; particularly in sensitive and difficult cases.

Emma is clerked primarily by Tom O’Connor Joe Ralph and James Gordon

‘A tough negotiator, who is excellent with lay clients [with] an impeccable court manner’

The Legal 500

‘Who can consent to a deprivation of liberty for children and young persons? – a practical guide’

Click here to read the article.

Emma’s Court of Protection practice is complemented by her public law practice in the fields of healthcare, mental health, education and community care.

Her experience includes disputes over capacity (including fluctuating capacity), health and welfare applications involving decisions about residence, care/ treatment, contact, sexual relations, contraception, marriage, and serious medical treatment; including anorexia nervosa, breast cancer, decisions regarding obstetric care and the withdrawal of clinically assisted nutrition and hydration. Emma also has experience of cases brought under the inherent jurisdiction of the High Court regarding children and the withdrawal of life sustaining treatment.

Emma is also regularly instructed in property and affairs disputes which include retrospective capacity issues, statutory wills, authority for ‘gifting’, and the appointment and removal of deputies and attorneys which include multi million pound estates and international issues including whether the court should exercise its functions in relation to property in England and Wales under  schedule 3 of the MCA 2005.

Many of Emma’s cases involve fact finding hearings. In health and welfare applications, this includes findings regarding physical, sexual and emotional abuse and in property and affairs where voluminous and complex accounting information requires consideration by the court. Emma also advises in civil claims where there are issues regarding the capacity of a person to enter contractual relationships (primarily regarding disposition of property).

Emma is highly experienced in applications involving deprivations of liberty (including advising and obtaining damages and/or other relief for breach of Article 5, 8 and 6 ECHR) and is regularly instructed on a consortium basis by collective Local Authorities regarding how lawful authorisation should be sought for children and adults.

In addition to regularly lecturing on this topic to supervisory bodies and managing authorities, Emma also provides training for BIA’s, social workers, psychiatrists, psychologists, speech and language therapists, occupational therapists and general practitioners.

Cases & Work of Note

SS (by her litigation friend, JC) v NHS Leeds CCG and A Care Home [2018], Newton J 
Instructed by the CCG in an application relating to serious medical treatment in the form of the withdrawal of clinically assisted nutrition and hydration. Cultural and religious issues and the consultation process with family members out of the jurisdiction and the repatriation of a body required consideration in addition to complex medical issues (Judgment awaited).

Leeds Teaching Hospital NHS Trust v IS and SH & YH (A child acting by his Children’s Guardian), Russell J 
In  Instructed by the Trust in an application regarding baby YH under the inherent jurisdiction of the High Court for orders that it was lawful and in YHs’ best interests not to be intubated, mechanically ventilated, treated with any form of resuscitation and to receive palliative care only. Sophia Roper represented the Trust at the final hearing (Judgment awaited).

Imperial College Health NHS Trust and West London Mental Health Trust v CW (by her litigation friend, the Official Solicitor) [2018] Parker J
Instructed by the Official Solicitor on behalf of CW in an application relating to serious medical treatment in the form of  obstetric care (Caesarean section)  (Judgment awaited)

The Public Guardian v SM & RM [2018] (ongoing) 
Insert  Instructed by the Public Guardian in an application for the court to determine whether P is habitually resident in England and Wales, and if not, whether powers under two LPAs have come to an end and whether the court should exercise its functions in relation to P’s property in England and Wales under schedule 3 of the MCA 2005. The case has involved complex disclosure issues and discussions with the Government of Gibraltar.

LM v JDE (by his litigation friend, the Official Solicitor) [2018], Francis J 
I   Instructed by the Official Solicitor on behalf of JDE for the case management of an application brought by a P & A deputy for declarations as to whether JDE had, or lacked the capacity to make the decision to marry, make a Will and enter into an ante-nuptial agreement.

The Public Guardian v Stalter [2018], Williams J
Instructed by the Public Guardian in an application for an order for the committal of the respondent to prison for contempt of court due to breaches of a transparency order by disclosing confidential information about ‘P’ arising from an earlier application made pursuant to s.22(4)(b) of the MCA 2005. (Judgment awaited)

M v ABM University Health Board [2018] UKUT 120 (AAC) (UTJ Mitchell)
Successful appeal on behalf of a patient detained for treatment pursuant to s.3 of the Mental Health Act 1983 on a point of law regarding an order made under rule 17 of The Mental Health Review Tribunal for Wales Rules 2008 prohibiting the disclosure of any document relating to the administration of covert medication to the patient. The case provides guidance for Mental Health Tribunal cases in covert medication disclosure disputes involving patients without the capacity to appoint a representative. Click here to read Sophia Roper’s blog post on this case.

The Public Guardian v X [2018], Williams J
Instructed by the Public Guardian in an application for an order for the committal of the respondent to prison for contempt of court due to breaches of a transparency order by disclosing confidential information about ‘P’ arising from an earlier application made pursuant to s.22(4)(b) of the MCA 2005. This case will consider how breaches of a transparency order should be determined (ongoing).

Re X Charitable Institution v A Local Authority & A Board of Governors [2018]
Instructed by a charity to advise upon the implications of the religious constitution of a school, school closure, the disposal of land on which the school was situated, and the rights of third parties having regard to historic trust deeds.

2017 – 2018 (ongoing) instructed by the Welsh Government to advise upon:

  • religious education in schools
  • collective worship in schools
  • education grants
  • deprivation of liberty issues in specialist educational placements
  • SEN specialist assessment processes (including how a pupils capacity impacts on such processes)
  • consultation processes (pre-regulatory implementation)
  • statutory interpretation
  • participation and representation of children, young persons and parents who lack capacity within the tribunal system

Re MB [2017] EWCOP B27, HHJ Parry
Instructed on behalf of MB by his professional litigation friend in a case of fluctuating capacity (in a s.21A challenge) where a number of expert psychiatrists were instructed to determine whether the mental capacity qualifying requirement was met. The ultimate consensus of the medical experts was that MB had capacity and the standard authorisation was terminated.

A Local Authority v X & Ors [2017], Keehan J
Instructed by the Official Solicitor on behalf of X in two applications: (1) a Part 8 claim and interim application of the Local Authority for declaratory and injunctive relief regarding contact restrictions between X and a family member and (2) an application by the Local Authority under s.21A of the MCA 2005 to challenge a standard authorisation regarding X’s deprivation of liberty. X is a high functioning autistic young man (age 20) who has capacity to make certain decisions but not others (hence the two jurisdictions) and involves complex issues including undue influence (ongoing).

A Local Authority v X (by her litigation friend, the Official Solicitor), A Trust & Ors [2017], HHJ Marston
Instructed by the Official Solicitor on behalf of X in a complex case involving a young adult (age 25) with severe learning disabilities and epilepsy attributed to an ABI caused by poorly managed seizures. The application centred on personal welfare orders regarding the appropriate care and treatment plan (further to a schedule of findings) as a failure to implement the medication plan included a risk of death (ongoing).

A Local Authority v P (by his litigation friend, the Official Solicitor) & Ors [2017], Keehan J
Instructed by the Official Solicitor on behalf of P, a young adult with a diagnosis of Dandy Walker Syndrome which resulted in learning disability secondary to hydrocephalus and associated epilepsy. Three applications were listed in the High Court [1] pursuant to its inherent jurisdiction for a declaration of non-recognition of the marriage of P to another in Punjab, India, by reason of P lacking the capacity to enter the marriage contract at the relevant times [2] pursuant to s.15 of the MCA 2005 for a declaration that P lacked the capacity to enter into a marriage, consent to sexual relations, make decisions regarding his residence, care, treatment and contact with others and [3] to authorise a ‘private’ deprivation of P’s liberty per s.16(2)A and s.4A(3) of the MCA 2005 applying Secretary of State for Justice v Staffordshire County Council & SRK & Ors [2016] EWCA Civ 1317. There were also parallel proceedings in the family court for a forced marriage protection order.

Re K [2017], Moor J
Instructed by a Local Authority in an application to invoke the inherent jurisdiction of the High Court in relation to a 15 ½ year old Looked After Child to authorise their detention within an educational residential establishment as the circumstances of their placement constituted a deprivation of their liberty within the meaning of Article 5 ECHR. The High Court authorised the detention until the child’s 16th birthday; at which time, the Local Authority were directed to apply to the Court of Protection.

An English Local Authority v a Scottish Local Authority [2017]
Instructed to represent an English Local Authority in a review of a determination made by the Secretary of State for Health under s.40(2) of the Care Act 2014 and within a parallel judicial review claim. The respondent is a Scottish Local Authority where complex cross border issues apply (ongoing)

A Local Authority v X children (by their Children’s Guardians) & Ors [2017]
Instructed to represent 6 children (through their guardians) in linked proceedings. Applications were brought by a Local Authority pursuant to s.24 of the Adoption and Children Act 2002 to revoke placement orders as the children had not been adopted. There are cross applications on behalf of each child for declarations and damages pursuant to s.7 of the Human Rights Act 1998 due to breaches of their Article 8 and Article 6 ECHR rights as they have been denied:

a.      access to the court within a reasonable period

b.      the procedural protection of a guardian

c.      the opportunity of a settled/ secure family life (ongoing)

A Local Authority v A Local Health Board [1] & WHSSC [2] (NHS funding disputes) [2017]
Instructed to advise a Local Authority regarding the decisions of a number of Local Health Boards not to fund high value placement costs for children with mental health needs which required a comparative analysis of the duties of the Local Authority (Social Services & Well-being (Wales) Act 2014) and those of the NHS (the NHS (Wales) Act 2006 and the Welsh Health Specialised Services Committee (Wales) Regulations 2009)

Re CM [2017]
Instructed on behalf of a patient regarding his transfer from the UK to the Republic of Ireland under s.86 of the Mental Health Act 1983 Act as he was not a British citizen or a Commonwealth citizen having the right of abode in the UK

Re M [2017]
Instructed by the Director of Social Services within a Local Authority to prepare an independent report regarding the safeguarding practices and procedures in place for children following the conviction of a former employee of child sexual abuse

Re MC [2017]
Instructed by a Local Authority to defend a claim for judicial review where it was asserted that the Local Authority failed to comply with its statutory duty to meet the care and support needs of an adult contrary to s.35 of the Social Services and Well-being (Wales) Act 2014

Re Bristol NHS Trust v AB [2016] 1 EWCOP 67, Baker J
Instructed by AB’s partner in an SMT application regarding AB’s capacity to make decisions about tissue biopsy, excision of a breast lump and mastectomy in circumstances where AB was highly resistant to surgery. It was determined that it was in AB’s best interests to be given general anaesthetic and for a biopsy to be undertaken, and in the event of malignancy; that it was in AB’s best interests to undergo surgery (axillary lymph node clearance and mastectomy) and receive post-operative care. The court also ordered that any deprivation of liberty arising from the treatment plan was in AB’s best interests.

Re AH [2016] EWCOP 9, Senior Judge Lush
Instructed by the Public Guardian in an application for an order under s.22(4)(b) of the MCA 2005 to revoke and cancel the registration of a property and financial affairs LPA, an order directing that a panel deputy be invited to act, and an order directing the panel deputy to investigate the previous management of P’s finances and restore them to their correct level. A Local Authority was also involved through an ongoing safeguarding inquiry pursuant to s.42 of the Care Act 2014 in relation to potential financial abuse. The court was satisfied that the attorney had behaved in a way that contravened his authority and described his management of P’s property and financial affairs as a ‘litany’ of failings. The applications were granted.

Re RC [2016]
Instructed by a Local Authority to advise upon the repatriation of a national of the United States of America with complex care needs who was brought from California by his family and abandoned in the UK and who lacked the capacity to make decisions regarding his residence and care and treatment needs.

Re Determination by the Secretary of State [2016]
Instructed by an English Local Authority in relation to three complex ordinary residence disputes; two of which were against Welsh Local Authorities involving expensive care packages and to prepare the legal submissions and statement of facts for each case in order for a determination to be made by the Secretary of State for Health pursuant to s.32(3) of the National Assistance Act 1948 in accordance with s.40 of the Care Act 2014.

Re Adult A [2016]
Appointed by an Adult Protection Committee as independent author to undertake a Serious Case Review concerning the death of a care home resident to establish whether lessons could be learnt about the way in which local professionals and agencies work together to safeguard vulnerable adults.

Re X School Reorganisation [2016]
Instructed by a Local Authority to advise on the process of amalgamating a foundation school and a community school into a community school in Wales and how issues regarding the charitable status of the foundation school should be addressed.

Re X PRU [2016]
Successfully defended a Pupil Referral Unit in a complex Equality Act 2010 claim where it was alleged that the school had discriminated against a pupil by excluding them from the school on multiple occasions (s.85(2)(e)), by not providing them with education (s.85(5)(c)); and by failing to make reasonable adjustments (s.85(6)). The FTT rejected the claim on all grounds.

Re X Farm Park [2016]
Instructed by a private commercial company to advise upon the appropriate entrance policy for persons caring for a child with a disability.

Re H [2016]
Instructed by the parents of a child in a claim against a school regarding misuse of private information (causing damage and distress to the child), breach of confidence, breach of its statutory duties under the Data Protection Act 1998 and contrary to section 6 of the Human Rights Act 1998 (its actions constituting an unjustified and disproportionate interference in the child’s right to privacy pursuant to Article 8 of the ECHR).

Re DWA [2015] EWCOP 72, Senior Judge Lush
Instructed by the Public Guardian in response to an application by one of three attorneys (‘A’) for reconsideration of an order revoking an LPA for property and financial affairs. The original application was made by the Public Guardian for an order under s.22(4)(b) of the MCA 2005 for the partial revocation and cancellation of the registration of the LPA. The court after hearing argument held that the donor was incapable of revoking the appointment herself and that A had behaved in a way that contravened her authority and was not acting in the donor’s best interests. In particular, the court held that A had breached her fiduciary duty by taking advantage of her position and had obtained a personal benefit, had failed to account satisfactorily for all transactions carried out on the donors behalf and contravened the duty to keep her money separate from that of the donor. The court confirmed the order made revoking A’s appointment as an attorney.

X City Council v X et al [2015], MacDonald J
Instructed by a Local Authority in an application to invoke the inherent jurisdiction of the High Court for injunctive relief to protect a capacitous, but vulnerable adult to whom the provisions of the MCA 2005 did not apply. The terms of the injunction included that members of X’s family should not interfere in the provision of care and support for X as their refusal pre-application had caused X significant physical and emotional harm.

Recommendations

Both leading directories recommend Emma as a junior for public & administrative law and Court of Protection work. Recent editorial includes the following:

  • a very knowledgeable and experienced Court of Protection practitioner;
  • an excellent advocate;
  • her advocacy is excellent;
  • she has a great ability to cut through complex issues to achieve the best outcome for her clients;
  • clear and helpful advice provided at all times;
  • great technical skills in terms of written legal advice and orders;
  • very practical and tactical advice;
  • very dedicated, so she knows the papers inside out;
  • she’s very well organised;
  • a tough negotiator;
  • committed and pragmatic;
  • excellent with lay clients;
  • user-friendly and supportive;
  • an impeccable court manner;
  • very prompt to respond to any questions;
  • adept in acting for and against local authorities;
  • her popularity as a practitioner is evidenced by the large proportion of work she receives as a result of repeat instruction;
  • very able, hard-working and bright; and
  • developing a formidable reputation at the Court of Protection.

Publications

Clarke Hall & Morrison on Children
Co-author of the chapter ‘Mental Health and Children’ (General Editor, Mr Justice MacDonald)

Articles

  • ‘Fluctuating capacity and how to address future uncertainties of care planning in a section 21A appeal’ (31 January 2018) (The Lawyer, Local Government Lawyer and Public Law Today)
  • ‘Who can consent to a deprivation of liberty for children and young persons? – a practical guide’ (23 February 2018) (used in practitioner training sessions, including 360 Degrees Training Ltd)
  • Emma has reported on the following cases which have been published by Community Care Inform:

(1)  Kings College Hospital NHS Trust v C & Anor [2015] EWCOP 80
(2)  Wye Valley NHS Trust v B [2015] EWCOP 60
(3)  An NHS Trust v CS (by her litigation friend, the Official Solicitor) [2016] EWCOP 10
(4)  North Yorkshire County Council & A Clinical Commissioning Group v MAG & Ors [2016] EWCOP 5
(5)  Staffordshire County Council v SRK & Another [2016] EWCOP 27

Seminars

  • 12 October 2017: ‘Life and death and public funding’, Young Legal Aid Lawyers
  • 8 November 2017: In association with Lanyon Bowdler Solicitors. “Law and Guidance: EHC Assessments and Plans” (for parents and health care professionals) at the Robert Jones and Agnes Hunt Orthopaedic Hospital
  • 29 January 2018: Cardiff City Council and the Vale of Glamorgan Council: DoLs Training for health and social care professionals (psychiatrists, psychologists, occupational therapists, general practitioners, BIA’s, social workers, RPR’s, and IMCA’s)
  • 13 March 2018: Hugh James Solicitors, Brain Injury Conference. “Deprivation of Liberty: A Practical Guide & 5 Cases you can’t live without”. For all healthcare professionals working with individuals with brain injuries and their families, including service providers, clinicians, social workers, occupational therapists, physiotherapists, case managers and charity workers
  • 21st May 2018: Update, Practice & Procedure, CoPPA Cymru launch event
  • Cardiff City Council and the Vale of Glamorgan Council: for Health and Social Care Practitioners ‘Deprivation of Liberty: a Practical Guide’ (16 April 2018, 30 April 2018)
  • Ceredigion County Council training: ‘Well-being, the Court of Protection and everything in between’ (9 July 2018)

Appointments

  • Attorney General Panel of Special Advocates (2017)
  • LexisNexis expert panel (2017) to provide advice in the areas of Public Law, Adult Social Services/Community Care and the Court of Protection
  • Panel of Legislative Draftsmen to the National Assembly for Wales (2008)
  • Welsh Government Junior Barrister (Public Law Scheme)

Awards

  • Bedingfield Scholar (Gray’s Inn)

Qualifications

  • LL.B (Hons) Law and Sociology, 2.1, Cardiff University
  • LL.M Commercial Law, Distinction, Cardiff University
  • First class grades in all subjects studied (Intellectual Property, Industrial Property, Insurance Law and International Contract Law)
  • BVC (Very Competent), Cardiff University. Outstanding in Advocacy, Drafting and Legal Research modules

Memberships

  • Public Law Association
  • COPPA
  • Secretary to the working committee of COPPA Cymru  (launched in May 2018)

 

Reflections

There are lessons to learn from every case and I strive to continually develop new skills. To reflect in order to improve as a barrister is essential for both individual growth and client satisfaction. A very wise Judge (now of the Supreme Court) once told me that they continued to learn something new each day which is a constant reminder that despite what I think I have grasped, that there is always room for improvement.

The ‘rule of 3’: irrespective of the particular intricacies of a case, I always strive to breakdown the legal arguments into clear parts, and in so doing, remind myself of the principle that the reader (whether a client or a Judge) is more likely to absorb and be persuaded by information if set out in a short and succinct manner and without legal jargon.

“it is essential not to neglect the human story behind the case and to remain compassionate in what are often very sensitive cases.”

Being a good lawyer is often about seeing the bigger picture outside of a particular set of facts and being able to advise the (professional) client upon wider strategies in their best interests. I am most proud of the cases in which practice and procedures have been amended as a consequence of advice given and which has brought about positive change beyond the facts of an individual case.

It’s essential to work as part of a team right from the outset of a case in order to maximize the skills of all involved. This is applicable for all cases, but particularly when representing professional clients who I regard as the specialists, and in which I see my role as weaving the legal framework around the issues to present the best possible case – having regard to what the client actually wants to achieve

The human side of a case must never be overlooked and whilst there is an obvious need to focus on the applicability of rules and regulations in public law challenges, it is essential not to neglect the human story behind the case and to remain compassionate in what are often very sensitive cases. This is critical whether acting for or against a public body as all parties involved in such cases are, ordinarily, well-intended.

I’m excited about the continual development in the areas of law in which I am fortunate enough to practice and how new and creative arguments can be developed and presented. It is the cases where there is no clear right or wrong answer that I most enjoy as original ideas can be advanced and the cross over between the evolving areas of law in which I practice often allows me to identify broader arguments

privacy

Emma adopts and adheres to the provisions of the privacy notice which can be accessed here.

Further Information

For further details of Emma’s practice please see her specialist profiles or contact a member of the clerking or client service team here.

Bar Council Membership No: 50369
Registered Name: Emma Naomi Sutton
VAT Registration No: 930111285