“She is often instructed on cases at the cutting edge and provides very useful insight into recent judgments and state of the law.”
The Legal 500 2023
Chair of the NICE Guidelines Committee producing guidelines: “Safeguarding adults in care homes” published in 2020
EXPERIENCE & EXPERTISE
Nageena has appeared regularly in the Court of Protection in a significant number of leading serious medical treatment cases on behalf of a variety of parties such as the Official Solicitor, local authorities, hospital Trusts, ICBs and other public bodies. She has a superb reputation in this field, with expertise in wider complex issues including cross border jurisdiction and the overlap with public law, where there may be resource implications in conflict with ‘best interests’ considerations. Nageena also has a successful property and affairs practice, especially around removal of deputies, including negligence claims and bond encashment in cases of high net worth.
Nageena also appears in the Family Division of the High Court in complex medical cases concerning babies and children and is frequently instructed in tricky cases where there may be a deprivation of liberty of young person, issues around delayed hospital discharge, secure or non-registered OFSTED accommodation, funding disputes for NHS continuing healthcare, complex mental health issues or lack of provision of suitable accommodation and care.
REcent Cases and work of note
Health & Welfare
- Re X (catastrophic injury: collection and storage of sperm): V & anor v X (by his litigation friend, the Official Solicitor) -v- King’s College University Hospital Trust  EWCOP 48 Poole J: instructed by the Official Solicitor on behalf of X who had suffered a an irreversible brain injury following a sudden collapse. The application was brought out of hours, pending brain stem testing, for a declaration that it would be lawful for a doctor to retrieve X’s gametes and store them both before and after his death on the signing of the relevant consents pursuant to the Human Fertilisation and Embryology Act 1990. Nageena successfully argued that it was not in X’s best interests, applying section 4 of the MCA, and that such an interference with X’s Art 8 rights was not necessary and proportionate.
- University of Bristol and Weston NHS Foundation Trust -v- RH and Avon and Wiltshire Mental Health Partnership NHS Foundation Trust  EWCOP (WLUK) Roberts J: acted for the applicant Trust. P diagnosed with a psychotic disorder where the concern was she might lose capacity during delivery of her baby. Anticipatory/contingent declarations sought and granted in “exceptional” circumstances, noting the right to respect P’s bodily integrity. The application of s.48 to make an interim order, where there was “reason to believe” that a person lacked capacity did not apply: an anticipatory/contingent order was made as a final order, on all the evidence, after capacity was determined. The appropriate test was whether there was a real risk that capacity would be lost at relevant time. Contingent declarations were justified, necessary and proportionate.
- Kings College Hospital NHS Foundation Trust -v- ZP (by her litigation friend, the OS) and South London and Maudsley  EWHC 2065 (COP) Morgan J: acted for the applicant and second respondent Trusts where P required urgent admission for planned C-section but lacked capacity due to a diagnosis of dissocial and emotionally unstable personality disorder. planned procedure only barely distinguishable from an application for an emergency procedure. Successfully resisted the OS’ submissions that the test for consent enunciated in Montgomery v Lancashire should be transposed into the Court of Protection. This was firmly rejected and the Trusts’ orders were granted.
- Mid Yorkshire Hospitals NHS Trust -v- (1) NB (via his proposed litigation friend, the Official Solicitor) (2) MB  COP Arbuthnot J: instructed by the Official Solicitor for P. NB in a permanent and prolonged disorder of consciousness with no prospect of recovery following a heart attack. Despite successful resuscitation by family at home, NB suffered a hypoxic brain injury. Complex medical evidence from independent neurorehabilitation specialists tested and agreement that NB had no awareness of the world around him and that continued provision of CANH was not in his best interests. The court considered NB’s faith as a Muslim but determined that loss of dignity and poor medical outcome were of magnetic importance.
- University Hospitals of North Midlands NHS Trust -v-SH (by his litigation friend, the Official Solicitor)  Arbuthnot J: acted for the Trust in a case where P lacked capacity due to his schizoaffective disorder and had ischaemic gangrenous toes due to Type 2 diabetes. Chemical and physical restraint proposed due to P’s refusal to have treatment and an order to perform angioplasty and partial amputation of affected toes was granted after conducting a best interests analysis, with expert evidence.
- University Hospitals Plymouth NHS Trust v Livewell CIC and CT (by her litigation friend, the Official Solicitor)  COP Arbuthnot J (initially Keehan J out-of-hours): instructed by the Official Solicitor for P who was a pregnant young woman with a diagnosis of anxiety and agoraphobia and was unable to leave the house for ante natal or routine obstetric care. The application was for draconian measures to anaesthetise P at home and use forcible restraint. This was successfully opposed by the OS at the first out of hours application, the care plan was revised and subsequently it was possible to manage P with the least restrictive option enabling her to deliver her baby safely in hospital.
- Birmingham Women’s and Children’s NHS Foundation Trust -v- J (represented by the Children’s Guardian CAFCASS), & Ors.  EWHC Family Division Hayden J: acted for the Trust. Application for a declaration that it was in J’s best interests for her not to be given mechanical or invasive ventilatory support at home or in hospital and for “ceilings of treatment” to be put in place, where J suffered from a progressively deteriorating rare genetic condition with no prospect of recovery. Religious and cultural views of the family taken into account but not determinative.
- University Hospitals North Midlands NHS Trust -v- Child X (CAFCASS Legal) & R (father)  EWHC Family Division MacDonald J October 2022: acted for the Trust out of hours application and obtained an order authorising blood transfusions to an 8 year old child to treat deranged haemoglobin levels, which were compromising his ability to counter his sepsis and severe flu infection, with serious risk of further clinical deterioration and death. The treatment was opposed father (R) on the grounds of his religious convictions as a Jehovah’s witness and an alleged earlier allergic reaction but no evidence was provided in support.
- Birmingham Women’s and Children’s NHS Foundation Trust v J  EWHC 2595 (Fam): Child welfare case: acted for the applicant seeking an order for ceilings of treatment and who suffered from a rare terminal neuro-degenerative genetic condition, and in child’s best interests not to be given mechanical or invasive ventilatory but to receive support a palliative care plan.
- Dartford & Gravesham NHS Trust v HP (by her litigation friend the OS)  Lieven J: an out of hours urgent application. Declarations sought pursuant to ss.15 and 26 of the MCA 2005 that HP lacked capacity to consent to treatment to manage his post operative recovery including whether to receive blood transfusions, ventilatory support and clinically assisted nutrition and hydration (other than for the purpose of palliative care). HP had complied with the statutory requirements and made a valid advance directive which had not been revoked or withdrawn, nor had HP acted in a manner which was inconsistent with it. As such it was lawful for the applicant Trust not to provide any of the treatments set out in the advance directive.
- NHS Foundation Trust v DG (by his litigation friend, the Official Solicitor) and another  EWHC 163 (Fam) Hayden J Child SMT case: acted on behalf of the Official Solicitor 9who stepped in to assist the court) and obtained a declaration that it was lawful and in the best interests of the child to discontinue mechanical ventilation. Orders under Section 14A of the Births and Deaths Registration Act 1953 to re-register birth; applications[NKK1] and declaration of parentage pursuant to ss.55A, 56 (4) & 58 of the Family Law Act 1986 and section 20 of Family Law Reform Act 1969 to reflect child’s parentage and Article 8 rights.
- Sandwell and West Birmingham Hospitals NHS Trust v TW  EWCOP 13 Hayden J: acted for the Trust in this serious medical treatment case and was successful in obtaining an order that it was in P’s best interests not to continue to receive life sustaining treatment after TW suffered a catastrophic brain injury, arising from a stroke.
- Cambridgeshire & Peterborough NHS Foundation Trust (1) & Cambridge University Hospitals NHS Foundation Trust -v- P (by her litigation friend the OS)  EWCOP Knowles J Serious Medical Treatment case: instructed by the OS for P in an application to remove cataracts in an incapacitous patient with a diagnosis of paranoid schizophrenia.
- TC (Urgent Medical Treatment)  EWCOP 53 Cobb J: instructed on behalf of the Official Solicitor in a serious medical treatment case involving forced treatment and surgery, using restraint if necessary to treat throat cancer in an incapacitous woman. Complex medical evidence. Declaration that it was lawful and in P’s best interests to be treated by way of chemo-radiotherapy and to undergo endoscopic resection and/or a tracheostomy.
- Birmingham Women’s and Children’s NHS Foundation Trust v JB  EWHC 2595 (Fam) Hayden J: acted for the Trust. Successful application involving 12-year old who acquired a severe brain injury for a declaration sanctioning the withdrawal of intensive care. P found with a ligature around his neck but did not fulfil the criteria for brain stem death; prospects for P’s life were futile the court held that a meaningful assessment of a child’s best interests requires a conscientious survey of the wide canvas of their life, including views of parents regarding faith, culture, and although important, they are never a determinative factor.
- A Clinical Commissioning Group v AF  EWCOP 16 Mostyn J: acted on behalf of the CCG in the first remote hearing in the pandemic: whether P had capacity and whether it was in his best interests for clinically assisted nutrition and hydration (CANH) to be withdrawn.
- Staffordshire County Council -v- Palmer  EWFC B35: committal proceedings for repeated breach of injunctive orders in the Court of Protection resulting in incarceration of the offender.
- CDM V Royal Borough of Greenwich  Court of Appeal McCoombe LJ, King LJ, Davies LJ: instructed by the local authority in this appeal against the decision of Cohen J (RB Greenwich v CDM  EWCOP15) in respect of fluctuating capacity. Permission to appeal was granted by Peter Jackson LJ.
- Re SJ  EWCOP 28 Moor J: represented the Official Solicitor and ‘P’. The case emphasised an holistic approach to best interests noting a staged approach to undertaking a colostomy procedure. The evidence of a key witness was permitted in unusual circumstances taking a proportionate approach to ensure Article 6 compliance.
- University Hospitals Birmingham NHS Foundation Trust HB (by her litigation friend, the Official Solicitor) and FB  EWCOP 39 Keehan J: serious medical treatment and end-of-life decisions, whether DNACPR notice was valid, and imposition of ceilings of treatment. Acted for the family successfully challenging the DNACPR notice and obtained a declaration that specific treatments were lawful and further that the Trust’s application to withdraw life sustaining treatment was premature and not in P’s best interests.
- Leeds Teaching Hospital NHS Trust v JF and CH  EWCOP 32 Cohen J: represented the sister of ‘P’ in this end of life medical treatment case and was successful in obtaining a declaration that it was not lawful to administer morphine and as to what was in P’s best interests regarding ceilings of treatment.
- In the matter of DS  Hayden J: anonymity and transparency order and freedom of speech for dying incapacitous adult in the Court of Protection.
- Re SW  EWCOP 7 Munby P: acted for the Human Tissue Authority (HTA) successfully resisting an application for permission to carry out an allogeneic bone marrow transplant in a patient suffering from multiple myeloma. Successfully argued that the court had no jurisdiction or power to exempt anyone from the statutory scheme under the Human Tissue Act 2004 and The Human Tissue Act 2004 (Persons who Lack Capacity to Consent and Transplants) Regulations 2006 with which Munby P agreed. Also obtained a costs order (over £7K) on the basis that the application was totally without merit, misconceived and vexatious.
- University Hospitals of North Midlands NHS Trust v JT (by her litigation friend, the OS)  EWCOP 25 Keehan J: acted in this serious medical treatment for an order that it was lawful and in JT’s best interest to undergo surgical removal of her left breast under general anaesthetic including authorising restraint and deprivation of her liberty. JT had a diagnosis of breast cancer, paranoid schizophrenia and was resistant to treatment.
- North Tees & Hartlepool NHS Foundation Trust v NMH (by his litigation friend, the OS)  Hayden J: instructed by the Official Solicitor on behalf of NMH, a 30-year-old refugee under the Vulnerable Person Resettlement Program who lacked capacity due to a traumatic brain injury. He required extensive dental treatment under GA. NMH’s care was complicated by reason of him enduring and witnessing torture in Syria and Lebanon including extraction of teeth and killing of some of his family.
- Re CA (Natural Delivery or Caesarean Section)  EWCOP 51 Baker J: a case concerning a young pregnant woman (CA), with a diagnosis of autism and a learning disability, tribal scarring and female genital mutilation. Represented the NHS Trust and secured a declaration that it was lawful and in CA’s best interests to undergo a planned Caesarean section, if necessary using force in a way that deprived CA of her liberty.
- University Hospitals of North Midlands NHS Trust -v- OA (by her Litigation Friend the Official Solicitor)  Francis J: represented the Trust in an application for urgent serious medical treatment (amputation of fingers) where the evidence in respect of capacity was finely balanced in an adult whose capacity fluctuated depending on her mental disorder (schizophrenia). Successful in obtaining best interests’ declaration permitting surgery.
- KM -v- Liverpool City Council & Chief Social Worker of Moray Council  HHJ Butler: represented the Chief Social Worker of the Scottish local authority in a s21A challenge to KM’s deprivation of liberty. Issues relating to ordinary residence, habitual residence and the roles and duties of the Scottish local authority and a Part 20 claim for a breach of the HRA and damages.
- Essex County Council v YN (by her litigation friend the OS & Others and Public Guardian)  DJ Eldergill Bulk application case where Nageena acted for the Public Guardian to determine whether a multi-party action could be brought and whether the local authority was entitled to remuneration at the higher rate.
- In the matter of AG  EWCOP 78 Munby P: an appeal in the President’s court. Acted for AG via the Official solicitor and was successful in seeking dismissal of the appeal. Guidance as to fact finding hearings in the CoP, adjournments and fluctuating capacity.
- Wolverhampton City Council v (1) RKS (2) MSS (by his litigation friend, the Official Solicitor) and the BCP NHS Foundation Trust  HHJ Cardinal: instructed via the Official Solicitor; issues included sufficiency of expert evidence in relation to capacity to marry, sexual relations and contraception and a Forced Marriage Protection Order was successfully obtained.
- Waghorn v NHS England  COP Newton J: successful in obtaining an order that the case should be struck out for want of jurisdiction on the basis that the protected party did in fact have capacity.
- United Lincolnshire Hospitals NHS Trust v N  EWCOP 16 Pauffley J An important and leading case on minimally conscious state and best interests, Nageena was instructed by the Official Solicitor to represent the interests of N who had removed her PEG and the doctors could not physically re-insert it. See press coverage here.
- Re X (amputation)  MHLO 89 (CA) Laws LJ, Richards LJ and Gloucester LJ: Instructed by the Official Solicitor at the first instance hearing (before Eleanor King J) and in the Court of Appeal. This urgent case concerned an elderly lady with a diabetic gangrenous foot which required a below knee amputation. The Court refused the appeal and made urgent declarations for treatment to proceed.
- Trust A, Trust B v Ms I (by her Litigation Friend, the Official Solicitor)  Peter Jackson J: represented Trust A. Ms I was a schizophrenic patient who required serious medical treatment – either a hysterectomy or mesh repair. The case involved both the Mental Health Act and the Mental Capacity Act and issues of restraint and the deprivation of liberty. Best declarations sought by Trust A were granted.
- FW v HM (by her litigation friend, the OS) & Birmingham City Council & Birmingham Community Healthcare NHS Trust  Holman J: represented the mother of a learning disabled young woman who it was alleged was being forced into marriage and who had undergone female genital mutilation. The case required considerable sensitivity in the consideration of capacity, medical evidence and best interests.
- A PCT & an NHS Trust v CW and others  EWHC 3448. Ryder J: case concerning an incapacitated adult in Permanent Vegetative State and the withdrawal of artificial nutrition and hydration. Acted for the Trust in a case which required the utmost sensitivity.
- A Local Authority v (1) Mrs A (by her litigation friend the OS) (2) Mr A  EWHC 1549 (Fam) Bodey J: this case considered the test for mental capacity to decide whether to use contraception under s.1(3) of the Mental Capacity Act 2005 where the protected party P had learning disabilities. The Court found that P lacked capacity under the second limb of the test and set out the appropriate test as regards capacity to decide whether to use contraception under such circumstances. Use of the inherent jurisdiction also considered.
Property & Affairs
- Re JC -v- IMTC  HHJ Hilder: acted for the replacement deputies who investigated the investments and management of P’s funds from a multi million personal injury award. Allegations of negligence by previous deputies and application for bond encashment.
- Westminster City Council v HS (by her litigation friend, the Official Solicitor) and RB  CoP: acted for the local authority in a case concerning elder financial abuse and a personal welfare application in respect of medical treatment. Order to authorise the execution of a statutory will on behalf of HS was granted. Allegations set out in a Scott Schedule with a lengthy fact find. Protective injunctions against RB (who had taken significant quantities of money from HS and the influenced her to change her will providing the estate (including a prime real estate property in London) be left to RB as sole beneficiary) were approved.
- Re AS : acted for P’s property and affairs deputy in a case concerning whether it was in the best interests of P (a young woman aged 21 who lacked capacity and was brought up as a Muslim with her family) who was awarded multi million pounds in a PI claim for birth injury) to invest her funds in Sharia compliant investments and whether she should pay zakat (a percentage of her funds to charity). Compromised by mediation.
- In the matter of JDF (deputyship) : acted for the property and affairs deputy’s (P’s mother) who was joint deputy with a professional solicitor deputy. Dispute between the two deputies as to management of multi-million-pound PI award, suitability of investment plans, financial advisers and future care and an issue as to P’s capacity to manage her property and financial affairs as she approached her 18th birthday; whether a trustee arrangement was appropriate. Advised regarding evidence, procedural issues and management of multi-million pound investment planning and trustee vs deputyship options, and successfully compromised the claim in favour of a new professional deputy being appointed.
- Re H  HHJ Hampton: Nageena achieved a successful outcome for her clients in this application to remove the attorney for property and affairs and health and welfare (raising issues as to retrospective capacity of P to execute a Will and LPAs) and whether the attorney should act as an executor where there were substantial investments and high value in the estate of the deceased. After testing the evidence on capacity the parties agreed to proceed by way of mediation and the claim was compromised with the approval of the court appointing a new executor and trustees.
- The Public Guardian v Flory & Hamilton : application brought by the PG raising concerns in respect of the professional deputy appointed in respect of property and affairs following a PI claim worth in excess of £9.5 million. Nageena represented the mother of the child beneficiary who was unhappy at the deputy’s management of the funds and his role in giving evidence against her in the family court which related to her divorce and child care proceedings. Nageena sought to remove the deputy and following her application and skeleton argument, the deputy stood down.
- Essex County Council v YN (by her litigation friend the OS & Others and Public Guardian  DJ Eldergill: bulk application case where Nageena acted for the Public Guardian to determine whether a multi-party action could be brought and whether the local authority was entitled to remuneration at the higher rate.