Emma Sutton

Call 2006

Overview

Emma is repeatedly instructed to represent English and Welsh Local Authorities, the Official Solicitor, the Public Guardian, Deputies/ Attorneys, CCG’s and Trusts (in England) and LHB’s (in Wales), family members and IMCA’s and RPR’s in applications in the Court of Protection. Emma also advises the Welsh Government where the capacity of children and young persons is in issue within the education system; including where a parent is Deputy or Attorney under an LPA.

 

‘She’s very dedicated, so she knows the papers inside out.’

Chambers & Partners

Fluctuating capacity and how to address future uncertainties of care planning in a section 21A appeal

Click here to read Emma’s article.

EXPERIENCE & EXPERTISE

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 and serious medical treatment; including treatment for anorexia nervosa and breast cancer.

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. Many of Emma’s cases involve fact finding hearings 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 engage in 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. This includes applications under the inherent jurisdiction of the High Court where appropriate.

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, occupational therapists and general practitioners.

CASES AND WORK OF NOTE

Hounslow Clinical Commissioning Group v RW & Ors [2019] EWCOP12 Hayden J
Instructed by the Official Solicitor on behalf of RW in an application relating to RW’s palliative care plan. Such issues had been considered by Mrs Justice Parker and the Court of Appeal where it had been determined (and upheld) that it was not in RW’s best interests to continue to receive CANH via a naso-gastric tube, but that he should receive end of life care at home. The CCG applied to court due to concerns regarding the management of RW’s condition at home. This included the unusual circumstance of RW’s necrotic leg (which self-detached), and the fact that RW had survived 10 months following the original decision. The court held that although RW would have wished to die at home, that his son, PT, would continue to give him food and water which presented a real risk of asphyxiation and that RW required pain relief which was not accepted by PT. Mr Justice Hayden endorsed the CCG’s plan, as supported by the Official Solicitor, for RW to die peacefully either in hospital or a hospice. Please see here for the Judgment and here for media coverage.

Northampton General Hospital NHS Trust v DD & St Andrews Hospital [2019] Williams J (interim) and Knowles J (final)
Instructed by St Andrews Hospital in an application relating to serious medical treatment including the continued withdrawal of CANH. DD had required repeated admissions to NGH as a consequence of pulling out her PEG tube which necessitated IV fluids under restraint and for the PEG to be resited under general anaesthesia. There was evidence that DD wanted her PEG tube to remain in place and that she was able to sing and enjoyed listening to music. That had to balanced with her overall poor quality of life and prognosis and the view of her carers and family. Orders made. Please see here for media coverage.

Cardiff & Vale University Health Board v MW [2019] Mostyn J
Instructed by the Health Board in an application relating to serious medical treatment in the form of cataract surgery, vitrectomy and endolaser treatment of the retina under general anaesthetic in an attempt to control diabetic retinopathy to save MW’s sight. MW  had a diagnosis of chronic delusional disorder (that she was pregnant) and diabetes. A manifestation of her delusion was that medication to treat her diabetes would harm her unborn child and she refused to take it. A further complication was that MW did not speak English. The case also required consideration of the overlap between the MCA 2005 and the MHA 1983. Orders made.

SS (by her litigation friend, JC) v NHS Leeds CCG and A Care Home [2018] EWCOP 40, Newton J 
Instructed by the CCG in an application relating to serious medical treatment in the form of the withdrawal of CANH. SS became ill during pregnancy and following an emergency caesarean section suffered a cardiac arrest and sustained severe hypoxic brain damage. She was left unconscious and unresponsive and subsequent SMART assessments concluded that she was in a permanent vegetative state despite reports of her laughing, crying and smiling. Cultural and religious issues, the consultation process with family members outside the jurisdiction and the repatriation of a body required consideration in addition to complex medical issues. Orders made. Please see here for the Judgment.

The Public Guardian v Imre Stalter [2018] EWCOP 27 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 section 22(4)(b) of the MCA 2005. The court made 25 findings of contempt. On the basis that the respondent confirmed that he would now abide by the transparency order, the court held that the purpose of the committal had been achieved. Please see here for the Judgment.

Birmingham Women’s and Children’s NHS Foundation Trust v Miss S and Mr H (Re Child A) [2018] Hayden J
Instructed by the Trust in an application under the inherent jurisdiction of the High Court and for a Specific Issue Order under section 8 Children Act 1989 for treatment limiting orders in respect of Child A. Child A was gravely ill with severe progressive lung disease with secondary pulmonary hypertension and associated progressive brain injury due to an extremely rare mutation in the ACTA 2 gene. Oral evidence included that of the consultant paediatric intensivist. The religious beliefs of the family also required consideration. Orders made that ventilator support and/or CANH be withdrawn and palliative care only to be provided.  Please see here for media coverage.

DS (by his litigation friend, the London Borough of Brent) v MH [2018]
Instructed to advise the claimant (‘DS’) by his P & A deputy, the London Borough of Brent, regarding a number of complex matters arising from a Will purportedly executed by DS appointing the defendant as sole executor and beneficiary of his estate. DS is paraplegic and has diagnoses of cerebral encephalomalacia and dementia. Multi-faceted case where advice was required as to (i) revocation of the Will on the grounds of undue influence (ii) invalidity due to DS lacking capacity at the date of execution (iii) revocation due to findings made (in parallel chancery proceedings) regarding the defendant. Case ongoing.

Leeds Teaching Hospital NHS Trust v IS and SH & YH (A child acting by his Children’s Guardian) [2018] Russell J
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. Orders made. Sophia Roper represented the Trust at the final hearing.

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). CW had a diagnosis of schizophrenia, emotionally unstable personality disorder and was 39 weeks pregnant. Oral evidence was heard from the consultant psychiatrist and consultant obstetrician regarding CW’s capacity to make decisions regarding her labour and delivery, and why a decision to compel CW to undergo surgery (who would otherwise wish to have a natural birth) was the least restrictive and in CW’s best interests due to the serious interference with her human rights.

LM v JDE (by his litigation friend, the Official Solicitor) [2018] Francis J
Instructed by the Official Solicitor on behalf of JDE for the case management of an application brought by JDE’s 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. JDE had a number of disabilities, including an ABI  as a consequence of being poisoned with insulin when a child. Case management addressed the necessity of expert capacity evidence, but also for the expert to address whether JDE should be informed of the extent of his multi-million compensation award.

In the matter of AM: The Public Guardian v SM [1] & RM [2] [2018]  DJ Beckley
Instructed by the Public Guardian in an application for the court to determine whether AM was habitually resident in England and Wales (or Gibraltar) and if not, whether the powers under two LPAs had come to an end and whether the court should exercise its functions in relation to AM’s property in England and Wales under schedule 3 of the MCA 2005. The case involved complex disclosure issues and discussions with the Government of Gibraltar. The attorneys chose to disclaim at the final hearing and a panel deputy was appointed to manage AM’s property which remained in the UK.

In the matter of GH: EG v CR [1] & The Public Guardian [2] [2018] HHJ Cronin
Instructed by the Public Guardian in an application pursuant to section 22(2)(b) MCA 2005 regarding GH to determine (i) whether GH lacked capacity to revoke LPAs in 2017 (executed in 2015) (ii) whether LPAs executed in 2016 should now be revoked (iii) if all LPAs were revoked, whether a deputy should be appointed. Submitted there was ample evidence that EG was not acting in GH’s best interests and that the continuing hostility between EG and CR was likely to impede the proper administration of GH’s estate which would be avoided by panel deputyship. Orders made as submitted.

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. Please see here for the decision.

Re Bristol NHS Trust v AB [2016] 1 EWCOP 67, Baker J
Instructed by AB’s partner in an application relating to serious medical treatment 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. 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; to undergo surgery (axillary lymph node clearance and mastectomy) and receive post-operative care.

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. Please see here for the decision.

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. Please see here for the decision.