Emma Sutton

Call 2006

Overview

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 has particular experience in health and social care, community care, mental health and education. Her Public Law practice is complemented by her Education and Court of Protection practice where she advises and represents a number of Public Bodies; including health and social care bodies, the Official Solicitor, the Public Guardian, CAFCASS, and the Welsh Government.

‘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.

EXPERIENCE AND EXPERTISE

Emma is continually instructed by Local Authorities and private individuals in relation to a wide range of health and social care issues including:

  • Duties and powers towards children and adults regarding accommodation and community care services
  • Duties of a local authority to a child under the Children Act 1989/ Adoption Act 2002/ Social Services & Well-being (Wales) Act 2014
  • The closure of residential care homes
  • Charging issues including the successful recovery of care home fees in the High Court
  • Local authority funding issues and direct payments
  • Ordinary residence disputes including cross border issues between England and Wales and England and Scotland and in applications for determinations and reviews by the Secretary of State
  • Disputes between social services authorities and health authorities regarding (inter alia) funding issues
  • The formulation of local authority policy and eligibility criteria

Many of the above issues result in judicial review claims or claims brought pursuant to s.7 of the Human Rights Act 1998 in which Emma has acted for both Claimants and Defendants. 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; providing advice on a local and national level.

In addition to the Administrative and Civil Courts, Emma is experienced in seeking relief pursuant to the Inherent Jurisdiction of the High Court, for and on behalf of vulnerable, yet capacitous children and adults.

Mental Health

Emma regularly advises and appears on behalf of Local Authorities and patients detained pursuant to s.2 and s.3 of the Mental Health Act 1983; including claims for damages, in nearest relative displacement applications and on appeals to the Upper Tribunal (Administrative Chamber).

Other

Emma regularly advises public authorities on issues of data protection and access to information in the above areas of law and is experienced in drafting policies in complex matters for Local Authorities and Charities and advising with regards to the legality or otherwise of policies currently in operation.

CASES AND WORK OF NOTE

R (on the application of HE) v Abertawe Bro Morgannwg University Health Board [2019] Mrs Justice Lambert (case management)
Instructed by the Health Board to defend an application for judicial review of its commissioning decision to provide care at home via the defendant’s core community nursing service. HE has a diagnosis of hypermobile ehlers danlos syndrome, postural orthostatus tachycardia syndrome and possible mast cell activation disease. She is eligible for CHC funding due to her primary health need and it was claimed that the defendant had (inter alia) acted unlawfully in failing to meet her assessed needs having regard to the extent of the care proposed. Following negotiation, HE withdrew the claim prior to the substantive hearing.

2019 (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) and statutory interpretation
  • Participation and representation of children, young persons and parents who lack capacity within the tribunal system
  • Duties to train the police
  • Amendments to the Immigration Rules published by the Home Office insofar as they concern the definition of a higher education institution in Wales
  • Development of the ‘Education and Skills’ section for the Law Wales website.

Re CF, TB, JS, KS, TE & JE (by their litigation friend) v A Local Authority [2018] HHJ Harrison
Instructed to represent 6 children in Part 8 claims pursuant to section 7(1)(a) of the HRA 1998. Declarations and damages were sought arising from the defendant’s actions including (i) a failure to apply to the court to revoke placement orders within a reasonable period (ii) the consequent uncertainty which caused anxiety/distress (iii) the lack of procedural protection provided by a children’s guardian and (iv) failing to provide a proper opportunity for a settled/secure family life through the identification of an adoptive placement. The proceedings were settled by consent (including damages) with the approval of the court pursuant to CPR 21.10.

R (on the application of JK, by his litigation friend, FK) v Betsi Cadwaladr University Health Board & Wrexham Borough Council [2018]
Instructed by the Health Board in an application to judicially review the process it adopted, jointly with the Local Authority, following a dispute regarding JK’s eligibility for CHC funding. JK has a rare condition (landau-kleffner syndrome) and a working diagnosis of isovolericacidaemia. Issues include (i) the lawful process of determining whether JK has a primary health need (ii) whether a lawful decision was made by the Health Board regarding use of an independent user trust (as direct payments for health services cannot be made in Wales). The claim is currently stayed in order for the dispute resolution process to conclude.

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. Please see here for the decision. Click here to read Sophia Roper’s blog post on this case.

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. The Secretary of State found in favour of the English Authority.

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 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 adult.