‘She’s very dedicated, so she knows the papers inside out.’
Chambers & Partners
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
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.
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. 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.
A Local Health Board v JK  EWHC 67 (Fam), Lieven J
Instructed by a Local Health Board in an application relating to the future medical treatment of JK. JK was a prisoner on remand for the alleged murder of a family member and a restricted patient under section 48 MHA 1983. He was refusing to eat and wished to die. The case was described by the court as ‘very difficult’ due to the overlapping legal frameworks of the MCA 2005, the MHA 1983 and the inherent jurisdiction of the High Court. The court determined that the proposed treatment (which included force-feeding by way of nasogastric tube) was treatment within the scope of section 63 MHA 1983 as JK’s refusal to eat was a manifestation or symptom of his autistic spectrum disorder. JK’s consent was not therefore required for the medical treatment; which included force feeding. Emma was led by Michael Mylonas QC. Please see here for the Judgment.
Hounslow Clinical Commissioning Group v RW & Ors  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  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  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  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  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)  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 
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)  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)  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)  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  & RM   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  & The Public Guardian   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  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  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  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  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.
Emma is recognised by both Chambers & Partners and the Legal 500 for her expertise in the Court of Protection. Recent editorial includes:
“She is so meticulous and precise, and her attention to detail is just incredible. She leaves no stone unturned.”
Chambers & Partners
“Firm, fair and articulate with extensive knowledge of the law. She has the ability to distil issues in cases quickly and effectively, and is an exceptional advocate.”
Chambers & Partners
“She is extremely approachable and has the respect of the judges.”
Chambers & Partners
‘She is a tenacious advocate with highly tuned negotiation skills and an immense knowledge of the law.’
The Legal 500
“Her preparation is absolutely meticulous and her attention to detail is like no other.”
Chambers & Partners
‘Is tenacious, detailed, thorough, confident, an exceptional advocate and argues a point well and, if required, fiercely. Whenever I instruct her I have complete confidence that the case will be handled exceptionally.’
The Legal 500
“She is fierce when she needs to be and her knowledge of the legal frameworks used in the COP is encyclopedic. She’s also very responsive and brilliant with clients.”
Chambers & Partners
“She’s technically brilliant and her preparation and the amount of work she puts in is phenomenal.”
Chambers & Partners
“A very knowledgeable and experienced Court of Protection practitioner. Her advocacy is excellent and she has a great ability to cut through complex issues to achieve the best outcome for her clients.”
Chambers & Partners