‘A tough negotiator, who is excellent with lay clients [with] an impeccable court manner’
The Legal 500
Expertise & Experience
Emma has considerable experience in constitutional law and whilst studying for her Commercial Law Masters, worked as a legal advisor for the Welsh Government within the (then) Office of the Counsel General. Her role included drafting and amending statutory instruments, statute commencement orders and undertaking parliamentary bill research. In practice, Emma is recognised as a leading junior in public & administrative law, Court of Protection, education and inquest and inquiries work. Emma has also been appointed by the Attorney General as a Special Advocate which involves cases of national security.
Emma is frequently instructed in complex and unusual cases for and against public bodies and regularly advises on an urgent basis due to the issues involved. As Emma appears in cases in both England and Wales, she is able to comprehensively advise upon the evolving variances in the legal frameworks, and any cross-border issues in the fields of health and social care and education.
Court of Protection: Emma advises on all aspects of health and welfare and property and affairs and is highly experienced in applications involving deprivations of liberty (including advising and obtaining damages and/or other relief) and is regularly instructed on a consortium basis regarding how lawful authorisation should be sought for children and adults. Her experience includes disputes over capacity (including fluctuating capacity), applications involving serious medical treatment (for children and adults, the former under the inherent jurisdiction), and decisions regarding residence, care, contact, sexual relations, contraception and marriage. 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 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 the disposal of property).In addition to regularly lecturing on this topic to supervisory bodies and managing authorities, Emma also provides training for health and social care practitioners.
Public and Administrative law: Emma frequently advises and acts for and against public bodies in judicial review claims in the fields of health and social care, mental health and education (which regularly involve human rights issues), secretary of state determinations in respect of ordinary residence and funding disputes between public bodies. Emma also has experience of acting as independent author in serious case reviews (involving multi-agencies) and advising in relation to adult and child practice reviews and has provided advice on a local and national level.
Education: Emma is instructed by Local Authorities, Governors, Headteachers, the Welsh Government, Charities, and parents in special educational needs disputes, discrimination claims (on the grounds of disability, race, and religious belief), school admission appeals (including legally advising the panel) and school exclusions in England and Wales. Emma also advises upon education outside school, school attendance, school organisation, school governance and finance, school closures, school staffing and school transport.
Inquests and inquiries: Emma is experienced in representing parties in Article 2 inquests; particularly in cases where the mental capacity and mental health of the deceased was in question prior to their death and where criticism is raised against public authorities regarding their duties to children and vulnerable adults.
Cases & Work of Note
(from the last 2 years: see individual practice pages for cases outside this period)
Manchester University NHS Foundation Trust, v KM (by his litigation friend, the Official Solicitor) & TM et Ors  EWCOP 42, Keehan J
Instructed by the applicant Trust in a case where declarations and orders were sought under the MCA 2005 regarding the withdrawal of life-sustaining treatment to KM, a 52 year old male, placed on an extracorporeal membrane oxygenation machine for 4 months, having suffered a cardiac arrest and contracted Covid-19. The application was vehemently opposed by KM’s family who expressed deeply held religious beliefs as Pentecostal Christians that God would intervene. Having heard expert evidence, clinical evidence and evidence from KM’s family and Pastor, and having described the application as ‘a very tragic and very sad case’, the court made the declarations sought. Please see here for the judgment.
University Hospitals Dorset NHS Foundation Trust, Dorset Healthcare University NHS Foundation Trust v Miss K (by her litigation friend, the Official Solicitor)  EWCOP 40, Lieven J
Instructed by the applicant Trust in an urgent case where declarations were sought under the MCA 2005 that it was in Miss K’s best interests to undergo an elective caesarean section the following morning. Miss K was detained under the MHA 1983 and was thought to have capacity to made decisions regarding her obstetrics case until shortly before the application was made; at which time, she was unable to effectively engage in conversations regarding her birth plan. Whilst the order sought was made, the court impressed the need for Trusts to bring applications of this nature in a timely manner. Please see here for the judgment.
An NHS Foundation Trust v ZA (by her litigation friend, the Official Solicitor)  EWCOP 38, Cohen J
Instructed by the Official Solicitor on behalf of ZA, a 53 year old women, in a case where the applicant Trust sought an order that it was in ZA’s best interests to undergo an above the knee amputation of her right leg due to chronic osteomyelitis and potential sepsis. This was opposed by the Official Solicitor (notwithstanding expert and clinical evidence to the contrary) due, in particular, to ZA’s clear and consistent objection, including at a time when she was capacitous. The court agreed and the application of the Trust was refused. Please see here for the judgment.
Chesterfield Royal Hospitals NHS Foundation Trust & Derbyshire Healthcare NHS Foundation Trust v TS (by his litigation friend, the Official Solicitor)  EWCOP 41, Peel J
Instructed by the applicant Trusts regarding the proposed fitting of a pacemaker for TS’s heart block, it being asserted that TS lacked capacity to do so due to a delusional disorder. An order was sought that it was in TS’s best interests for a pacemaker to be fitted and to authorise the deprivation of TS’s liberty that was likely to arise due to his objection to the proposed procedure. The application was granted and the court praised the legal teams involved for the careful preparation of the case. Please see here for the judgment.
Andrew James Riddle v Public Guardian  EWCOP 38, Lieven J
Instructed by the respondent in an application for permission to appeal the two judgments of Her Honour Judge Hilder reported as The Public Guardian v Andrew Riddle (No1) and (No2)  EWCOP 41 which considered 40 cases in which the appellant sought (but was refused) authority to charge fees at solicitor rates or a specified rate. Four grounds of appeal were raised, each ground was opposed by the respondent, and the court ultimately agreed that none of the grounds gave rise to a reasonable prospect of success, and that there was no other compelling reason why the appeal should be heard. Permission to appeal was therefore refused. Please see here for the judgment.
A Midlands NHS Trust v RD (by her litigation friend, the Official Solicitor) et Ors  EWCOP 35, Moor J
Instructed by the Official Solicitor on behalf of RD, a 37 year old woman suffering from a severe form of anorexia nervosa in an application brought by the Trust which sought declaratory relief that it was lawful not to take any steps towards forcing nutrition against her wishes, notwithstanding that by so doing, it might prevent her death. The application accorded with RD’s wishes and feelings and was not opposed by the Official Solicitor subject to certain changes being made to the care plan. The court made the declarations sought under the MCA 2005 and pursuant to the inherent jurisdiction of the High Court. Please see here for the judgment.
A Mental Health Trust v ER (by her litigation friend the Official Solicitor) & An NHS Foundation Trust  EWCOP 32, Lieven J
Instructed by the applicant Trust in a case described by the court as a ‘particularly sad case’ regarding the withholding of life sustaining medical treatment in the form of clinically assisted nutrition and hydration to a patient, ER, who had a long standing diagnosis of anorexia nervosa. The Trust did not seek to treat ER against her will (via the MCA 2005 or the MHA 1983), with the consequence that she would sadly die. ER had capacity to make decisions regarding other physical health needs and the court was concerned to ensure that ER’s capacity to make decisions regarding treatment for her anorexia was properly analysed. The court ultimately accepted the clinical and expert evidence that ER lacked capacity. Please see here for the judgment.
A Teaching Hospitals NHS Trust v DV (A Child)  EWHC 1037 (Fam), Cohen J
Instructed by the applicant Trust in a case involving a competent minor, DV, who required urgent treatment for a right lung metastasis by way of right lung pulmonary metastasectomy under general anaesthetic. The surgery carried a risk of haemorrhage and DV was a practicing Jehovah’s Witness who objected to transfusion. An order regarding the lawfulness of withholding blood products was sought by the Trust, which was granted, notwithstanding the arguments raised on behalf of DV that due to his age (17) and competence, that he was able to make treatment decisions without the involvement of the court. The court dismissed the application of DV for declaratory relief that DV could decide his own medical treatment and similarly dismissed arguments raised regarding the incompatibility of section 8 of the Family Law Reform Act 1969 with Articles 3, 5, 8, 9 and 14 of the European Convention on Human Rights. Please see here for the judgment.
X NHS Foundation Trust & Y NHS Foundation Trust v Miss A  EWCOP 17, Cohen J
Instructed by the applicant Trusts for declarations and orders under the Mental Capacity Act 2005 regarding the obstetric care of Miss A who was 38 weeks pregnant and detained under Mental Health Act 1983. Miss A had a diagnosis of paranoid schizophrenia and was unable (as a consequence) to make decisions regarding her obstetric care. Although Miss A wanted a home birth and was strongly opposed to an elective caesarean section, the court agreed that a vaginal breech birth was not in her best interests due to the high risk that this would result in an emergency caesarean section (the external cephalic version procedure having been unsuccessful), and as Miss A’s mental health difficulties were likely to prevent her from engaging in the demands of a natural birth. Having heard oral evidence from the obstetrician and psychiatrist, the court approved the applicant’s treatment plan. Please see here for the judgment.
The Newcastle Upon Tyne Hospitals NHS Foundation Trust v RB (by his litigation friend SB)  EWCOP 11, Lieven J
Instructed by the applicant for declarations and orders under the Mental Capacity Act 2005 regarding whether it was in the best interests of the respondent, RB, to receive modified chemotherapy (Carboplatin + Etoposide) for metastatic germ cell cancer. The proposed treatment was not ‘first line’ treatment for a patient with RB’s diagnosis and young age, and as there was a difference of clinical opinion, a technical exploration of why an alternative regime was considered to be in RB’s best interests was required. Having heard oral evidence from three clinicians, the court approved the applicant’s treatment plan. Please see here for the judgment.
UR (by her litigation friend, the Official Solicitor) v Derby City Council and NHS Derby and Derbyshire Clinical Commissioning Group  EWCOP 10, Hayden J
Instructed by the Official Solicitor in a case which originated as an application under the MCA 2005 regarding the administration of medication, nutrition and hydration via a PEG tube in respect of UR, a lady with longstanding complex mental health difficulties, and which culminated in an application regarding UR’s residence; specifically whether it was in her best interests to return to Poland to live with her family. The Vice President addressed the issue of whether UR could leave the jurisdiction due to the Covid-19 pandemic (with reference to the associated Regulations), and gave guidance for future cases involving the permanent relocation from England and Wales. The court determined that it was in UR’s best interests to return to Poland. Please see here for the judgment.
University Hospital of Derby and Burton NHS Trust & Derbyshire Healthcare NHS Foundation Trust v MN (by his litigation friend, the Official Solicitor)  EWCOP 4, Hayden J
Instructed by the applicants in an urgent case concerning life sustaining medical treatment for MN who had an obstruction in his kidney suspected to be bladder cancer. CT examination and cystoscopy procedures were necessary and were due to be performed 4 days later. As a consequence of the severe restriction on the number of beds available for elective surgery due to the Covid pandemic however, medical treatment could no longer be provided until March 2021. The main issues related to the application for an adjournment and whether the court should, on an interim basis, make orders regarding emergency treatment (including with restraint). The adjournment was allowed, and the interim orders made on the basis that certain conditions were satisfied. Please see here for the judgment.
Great Ormond Street Hospital for Children NHS Foundation Trust v MK (by her litigation friend, the Official Solicitor)  EWHC 3476 (Fam), Peel J
Instructed by the Trust in a serious medical treatment application where a declaration was sought that it was lawful and in the best interests of a 7 year old child to undergo urgent open heart surgery in circumstances where no person could legally consent to the treatment. As highlighted by the court ‘A point of perhaps wider interest to practitioners has emerged about the use of a child arrangements order to confer parental responsibility on the close relative with whom the minor lives, so as to avoid the need for further such applications where there is agreement as to the way forward’. The court made the order sought by the Trust and a separate child arrangements order was made in favour of the child’s relative, the court highlighting that ‘this may be a useful course of action in other cases’. Please see here for the judgment.
Essex County Council v CVF (by her litigation friend the Official Solicitor), JF and Essex Partnership University NHS Foundation Trust  EWCOP 65, Lieven J
Instructed by the Local Authority in a multifaceted/ hybrid application regarding the personal welfare and property and affairs of CVF, a young person, who had complex needs arising from a learning disability and emotionally unstable personality disorder. The court fully agreed with the position of the Local Authority and made the welfare order sought in respect of CVF’s care and support needs, appointed the Local Authority as CVF’s deputy for property and affairs, and dismissed JF’s personal welfare deputyship application. Please see here for the judgment.
University Hospitals of Leicester NHS Trust v TC (by her litigation friend, the Official Solicitor) et Ors  EWCOP 53, Cobb J
Instructed by the Trust in an application relating to life sustaining medical treatment in what the court described as a ‘distressing and worrying case’. TC had advanced cancer of the larynx and without urgent treatment would die. The plan was for a prolonged period of treatment (at least 6 weeks) and the court was required to balance the presumption that it was in TC’s best interests to stay alive against her likely opposition, the restrictive nature of the plan, and the serious effect the treatment would have on TC’s profound depression. The court held that it was in TC’s best interests to be treated by way of chemoradiotherapy and to undergo endoscopic resection and/or a tracheostomy in accordance with the treatment plan. Please see here for the judgment.
Re ND (Court of Protection: Costs and Declarations)  EWCOP 42, Keehan J
Instructed by the Official Solicitor in a successful application for declaratory relief and costs arising from the failures of a Local Authority to discharge its statutory duties arising under the Children Act 1989 and the Care Act 2014 in respect of a young person, ND, who had particularly complex needs, but was (ultimately) found to have capacity to make decisions in respect of his health and welfare. Please see here for the judgment.
The Public Guardian v Andrew Riddle (Nos 1 and 2)  EWCOP 41, Senior Judge Hilder
Instructed by the Public Guardian in a legally and procedurally complex case involving 40 individuals where the court had to consider the ability of a non-solicitor professional deputy to charge fees at solicitor rates. Guidance was provided regarding the circumstances in which solicitor rates would apply, how VAT liability should be addressed, and how authority for Independent Visitor costs should be sought. In every case, the court refused the applications of Mr Riddle for authorisation to charge fees at solicitor rates, refused his applications for relief from liability for past charging, and refused his subsequent application for a costs order against the Public Guardian. Please see here for the substantive judgment, and here for the costs judgment.
Cornwall Council v NP  EWCOP 44, DJ Taylor
Instructed by NP’s wife in a case where the Court of Protection concluded that it was in the best interests of NP, a man with neurological sequelae of herpesviral encephalitis and personality change, to have a trial return home to live with his wife. In reaching its decision, the court took account of the risks in such a trial, the reality that there would be no option of a return home without a trial, and Article 19 of the UN Convention on the Rights of Persons with Disabilities 2006. Please see here for the judgment.
Avon and Wiltshire Mental Health Partnership v WA & Anor  EWCOP 37, Hayden J
Instructed by the Official Solicitor as Advocate to the Court to assist in the complex moral, ethical and legal issues the case presented. The court was asked to determine whether a young Palestinian man, WA, had the capacity to make decisions about his nutrition and hydration and, if he lacked capacity, what would be in his best interests. The factual matrix, including his reasons for wanting to die (which related to a dispute with the Home Office regarding his age) and the decision regarding his capacity was exceptionally complex. The court concluded, in what was described as a ‘challenging exercise’ that WA lacked capacity to make decisions about his nutrition and hydration, but that it was not in his best interests for forced naso-gastric feeding to be carried out without his agreement due (in particular) to his past history of abuse and torture. Read more about the case on our UK Medical Decision Law Blog. Please see here for the judgment.
TH (Property and Affairs Deputy) v PB (by her litigation friend, CR) , Russell J
Instructed to represent PB in an application brought by a professional deputy who sought to withhold PB’s decree absolute and order that PB return to the UK (from Jamaica) having travelled on the premise of getting married. The issues for final hearing were (i) PB’s capacity to make decisions regarding finances, make a Will/ revoke her existing Will, and to marry, and (ii) PB’s application to remove the deputy. The court agreed that the expert evidence was insufficient, held that PB was capacitous in all areas save for finances, and appointed a new deputy due to PB’s breakdown in the relationship with the existing deputy.
A Healthcare and B NHS Trust v CC (by his litigation friend, the Official Solicitor)  EWHC 574 (Fam), Lieven J
Jointly instructed by the applicants in a complex case concerning CC, who had diagnoses of psychotic depression and a mixed personality disorder who was detained under section 3 MHA 1983. CC was also deaf, had type 1 diabetes, and suffered complex physical health issues caused by chronically poor compliance with the required diabetic treatment, including renal failure. The court had to consider the interplay between the MHA 1983 and the MCA 2005 and determine whether, and if so, how dialysis could and should be lawfully given due to CC’s refusal. CC would die within 6 weeks without the necessary treatment. The court agreed with the primary argument that CC’s refusal of dialysis was a manifestation of his mental disorder and that he could be treated under section 63 MHA 1983. Please see here for the judgment.
Emma has been consistently recommended by the legal directories (Chambers & Partners and the Legal 500) as a leading junior. She is recommended for public & administrative law, Court of Protection (Band 1), education, and inquest and inquiries work. Recent editorial includes the following:
- her knowledge of the legal frameworks used in the COP is encyclopaedic;
- technically brilliant;
- whenever I instruct her I have complete confidence that the case will be handled exceptionally;
- is tenacious, detailed, thorough, confident, an exceptional advocate and argues a point well and, if required, fiercely;
- has the respect of the judges;
- very able, hard-working and bright;
- an immense knowledge of the law;
- is an exceptional advocate;
- a go-to lawyer for thorny issues;
- very responsive and brilliant with clients;
- her popularity as a practitioner is evidenced by the large proportion of work she receives as a result of repeat instruction;
- very practical and tactical advice;
- firm, fair and articulate with extensive knowledge of the law;
- extremely meticulous, knowledgeable, and a fearless advocate;
- a tenacious advocate with highly tuned negotiation skills;
- she leaves no stone unturned;
- an impeccable court manner;
- she has a great ability to cut through complex issues to achieve the best outcome for her clients;
- she is so meticulous and precise;
- her attention to detail is just incredible;
- her workload includes judicial review and advisory work;
- extremely approachable;
- she has the ability to distil issues in cases quickly and effectively;
- her preparation is absolutely meticulous;
- her attention to detail is like no other;
- fierce when she needs to be;
- her preparation and the amount of work she puts in is phenomenal;
- a very knowledgeable and experienced Court of Protection practitioner;
- an excellent advocate;
- her advocacy is excellent;
- clear and helpful advice provided at all times;
- great technical skills in terms of written legal advice and orders;
- very dedicated, so she knows the papers inside out;
- she’s very well organised;
- a tough negotiator;
- she prepares cases to a very high level of detail;
- committed and pragmatic;
- excellent with lay clients;
- user-friendly and supportive;
- very prompt to respond to any questions;
- she has the ability to distil issues in cases quickly and effectively;
- adept in acting for and against local authorities;
- extremely meticulous, knowledgeable, and a fearless advocate; and
- developing a formidable reputation at the Court of Protection.
- Medical Treatment Decisions and the Law (Fourth Edition) (publication awaited) Author of the chapters ‘Feeding’ and ‘Going to Court’ (Edited by Christopher Johnston QC)
- Clarke Hall & Morrison on Children
Co-author of the chapter ‘Mental Health and Children’ (General Editor, Mr Justice MacDonald)
- Emma has written articles for The Lawyer, Local Government Lawyer, Public Law Today and has provided practical guidance which has been used in practitioner training sessions including 360 Degrees Training Ltd (for example, regarding who can consent to a deprivation of liberty for children and young persons)
- Emma has reported on a number of Court of Protection authorities which have been published by Community Care Inform
- Emma is a Contributor for the Medical Law Reports; most recently having reported upon the case of AB v CD & The Tavistock and Portman NHS Foundation Trust et Ors  Med LR 365
- Emma regularly provides bespoke training to solicitors and professional clients; particularly in relation to NHS and Local Authority duties, with a focus on mental health, mental capacity, education and commissioning. Emma is also regularly invited to speak at larger conferences in her specialist areas.
- Welsh Government A Panel of Junior Counsel (2021)
- 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)
- Gray’s Inn Mentor
- Bedingfield Scholar (Gray’s Inn)
- 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
- Court of Protection Barristers Association (Secretary: 2021)
- Constitutional & Administrative Law Bar Association
- Human Rights Lawyers’ Association (Executive Committee: 2019-2020 & 2020-2021)
- Wales Public Law and Human Rights Association
- Secretary to the working committee of CoPPA Cymru (2018 to date)
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 (who recently retired from 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.
Emma adopts and adheres to the provisions of the privacy notice which can be accessed here.
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