COURT OF PROTECTION
Serjeants’ Inn is at the cutting-edge of the law concerning decision making for those lacking capacity. Our Court of Protection team, led by Michael Mylonas KC and Sophia Roper KC, is highly ranked by the independent legal directories, which describe Serjeants’ Inn as a “go-to set for Court of Protection matters” (The Legal 500) with “a very impressive track record of handling the leading and most publicised cases in the area” (Chambers & Partners).
Our expertise in this area is underlined by the fact that we write and edit the only comprehensive legal textbook in this field, Medical Treatment: Decisions and the Law. The fourth edition is edited by Christopher Johnston KC and Sophia Roper KC and was written by a team of 27 members of Serjeants’ Inn. We also publish a blog, the UK Medical Decision Law Blog and have a Medical Treatment: Decisions and the Law podcast.
The team’s work encompasses all areas of human rights and civil liberties in health, social care and financial decision-making with members advising and representing statutory bodies, incapable people and their families in cases covering a very wide range of legal and factual issues.
We have been instructed in a number of key cases including:
- Re William Verden: Bridget Dolan KC and Emma Sutton KC, appeared on behalf of William, a 17-year-old with autism, through The Official Solicitor in the application for William to receive a kidney transplant against the professionals’ opinion. Mrs Justice Arbuthnot allowed the transplant judging it to be in William’s best interest. The BBC made a successful application to set the reporting restrictions order aside in order that the media could support the campaign launched by William’s mother to find him a kidney donor. This case was largely covered by the press, find an example here.
- Oxford University Hospitals NHS Foundation Trust v Ms P: Michael Mylonas KC and Debra Powell KC appeared in this very difficult and sensitive case where an intelligent, well-educated and articulate woman, in her late 40s, with a psychotic illness and ovarian cancer was refusing to undergo a hysterectomy that stood a good chance of curing her cancer, and without which she could die. Mr Justice Moor decided that she lacked capacity and the Court of Appeal refused her permission to appeal.
- Re M (Declaration of Death of Child): Neil Davy KC acted on behalf of the Trust seeking a declaration that mechanical ventilation could be withdrawn from a baby on the basis that death had already occurred. This case involved the medically and ethically complex issue of when death should be deemed to have occurred and the Court of Appeal’s decision is now the authoritative decision on the legal definition of death.
- Briggs: Conrad Hallin appeared for the NHS Trust and CCG in this seminal case determining the limits of s21A of the Mental Capacity Act (MCA) before the Vice President of the Court of Protection.
- Re JM: Bridget Dolan KC, Conrad Hallin and Amy Street all appeared in this landmark test case before the Vice President to determine the lawfulness of procedural steps following the Supreme Court decision in Cheshire West. Charles J placed responsibility on central government to ensure that those lacking mental capacity had independent representation in circumstances where they were deprived of their liberty, whilst finding that local authorities and CCGs had no statutory duty to provide such representation. The judge criticised the MoJ and DoH for their “avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people”. The case has implications for thousands of sensitive court applications regarding vulnerable persons every year. Described by the Law Society as an “unprecedented judgment”.
- Re X: Michael Mylonas KC and Conrad Hallin were instructed in this hugely significant Court of Protection case in which the court tried to identify a cost effective and lawful way of dealing with the many thousands of Deprivation of Liberty applications that were being made each month.
- King’s College Hospital NHS Foundation Trust v (1) C (2) V  COPLR 50: Michael Horne KC acted for the NHS trust and Katie Gollop KC was instructed by the Official Solicitor in this notorious case concerning a socialite who had ‘lost her sparkle’ and was held to have capacity to refuse life-sustaining treatment.
- M v N and the Bury CCG and Another  EWCOP 76,  COPLR 88: Katie Gollop KC was instructed in this important decision concerning the weight to be attached to evidence about the patient’s wishes and feelings in relation to the withdrawal of life sustaining treatment. The patient had multiple sclerosis and had a prolonged disorder of consciousness as a result. There was a dispute between the experts as to whether she was in a vegetative or minimally conscious state: the court found she was minimally conscious. The court declared that it was not in her best interests to continue to receive life sustaining treatment.
- An NHS Trust v A: Angus Moon KC was instructed by The Official Solicitor in a claim for declaration permitting “force-feeding” of an Iranian hunger striker whose passport had been removed by the UK Border Agency. The case involved the making of a new law in relation to a “gap” in the Mental Capacity Act 2005.
For over 30 years Serjeants’ Inn has been at the forefront of the law relating to medical treatment decisions for those lacking capacity. Since Re F (sterilisation) in 1990, tenants have appeared in some of the seminal medical ethical cases that have developed the law relating to capacity and consent to treatment, from the first PVS treatment withdrawal case of Bland in 1993 through to the recent widely reported case of Re M (withdrawal of treatment in a minimally conscious state). Our barristers are leaders in the field of “right to die” cases, including appearing in the first Human Rights case heard under the Mental Capacity Act 2005.
The strength and depth of the team makes us the set of choice for many NHS Trusts and the Official Solicitor’s office when complex and emergency medical cases arise.
Serjeants’ Inn has experience at all levels of seniority in property and affairs work under the jurisdiction of the Court of Protection. We act and advise to protect the finances of people who lack mental capacity in contentious and non-contentious matters alike. Our barristers regularly advise and act for the Office of Public Guardian, the Official Solicitor, attorneys, deputies (professional and lay), and family members in relation to a broad variety of property and affairs issues, including:
- Declarations regarding mental capacity (including property and affairs, testamentary capacity);
- Cases requiring retrospective capacity evidence;
- Lasting powers of attorney and enduring powers of attorney, their validity, extent, registration and challenges to them;
- Statutory will applications, including those which are urgent and expedited;
- Applications to authorise or set aside gifts;
- The appointment, removal and control of deputies;
- Deputy and attorney liability;
- Authorising deputies and attorneys to conduct litigation;
- Preventing deputies and attorneys from conducting litigation;
- The sale or other disposition of property;
- Applications by current deputies to call in security bonds obtained by former deputies;
- The international jurisdiction of the Court of Protection; and
- Costs and the departure from the general rule.
Chambers’ leading expertise in relation to health and welfare cases in the Court of Protection means that our members are exceptionally well placed to deal with “hybrid” cases which are now commonplace, where both property and affairs and welfare issues require consideration.
Notable cases include:
- Acted for grandson in case where a very wealthy testator (grandmother) lacked capacity. Her will was varied to allow for £6m lifetime gift to be made to mitigate inheritance tax, which is thought to be one of the largest gifts ever approved by the Court of Protection.
- TH (Property and Affairs Deputy) v PB (by her litigation friend, CR) (2020, unreported) Russell J: application by a professional deputy who sought permission to withhold PB’s decree absolute and an 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 the breakdown in PB’s relationship with the existing deputy.
- OPG v CL & Others (2020, unreported): whether it was in P’s best interests for two years of family care payments to be paid to P’s friend in recognition of care provided over an 18 month period.
- A Local Authority v X (ongoing): complex case concerning a lady in her 80s who has recently married her deceased husband’s carer, with criminal allegations against the new husband arising from his use of her money and property. In addition to property and affairs issues, the matter also concerns residence and contact.
- The Public Guardian v P and ors (2019): case involving the Public Guardian’s application to remove Lasting Powers of Attorney in respect of both Property and Affairs, and Health and Welfare, from the daughter and granddaughter of P, with allegations of significant financial misuse. The appointment of a panel deputy was secured.
- DB v EP, JP, RP (by her litigation friend, the Official Solicitor) & Warwickshire County Council (2019, unreported): application by a professional deputy seeking appointment as RP’s property and affairs deputy under section 16(2)(b) MCA 2005 where there was a significant estate, and an argument between family members as to whether RP should return to live in Scotland.
- Dudley MBC v SH and SA (2019, unreported): representation of the local authority protecting a vulnerable elderly man, reversing the unlawful sale of his house and obtaining injunctions against his son who had stolen money from him, pursuing a committal under the court of protection rules with a parallel trading standards prosecution resulting in the offender’s incarceration. This hybrid case also involved best interests decisions in relation to welfare (residence, care and contact.
- OPG v PAL & MRL (2019, unreported): application by the OPG under s.22 MCA 2005 to revoke LPAs for both property and affairs and health and welfare, where P’s care fees had not been paid and the two attorneys were unable to account for significant cash expenditure from P’s bank account.
- Re SKS (2019): application by the OPG to suspend LPAs for both health and welfare and property and affairs; concurrent application by local authority for determination of P’s best interests as regards residence and in particular whether he should remain in the UK or return to his country of origin. Retrospective evidence required as to P’s capacity to make and subsequently revoke the LPA; questions of recognition and enforcement of orders in both countries arose.
- Re GG (2018, unreported): application by professional deputy to (i) call in the security bond for the sum of £200,000 in relation to misappropriated funds spent by former family deputy; (ii) retrospectively approve gifts in the sum of £45,000 paid to family members.
- Re AH  EWCOP 9: application by the OPG under s.22 MCA 2005 to revoke an LPA for property and affairs on the basis that the donor had behaved in a way that contravened his authority and was not in the donee’s best interests.
- DB v JB & LP (2016, unreported): application by sibling attorneys under an EPA to determine the habitual residence of a mother / donor where she had spent significant periods of time in England and Scotland; cross-application by Scottish attorney under Welfare Power of Attorney that the English EPA was invalid.
- Re DWA  EWCOP 72: application by the OPG to remove one attorney under an LPA following concerns that she breached her fiduciary duty by taking advantage of her position and that she had obtained a personal benefit from her position.
In the welfare and social care arena, barristers from Serjeants’ Inn have appeared in many of the headline cases in the CoP and Court of Appeal involving deprivation of liberty under the MCA and the interface of the MCA with the Mental Health Act, (e.g. G v E (Court of Appeal); A Local Authority v A; GJ; TB). As well as cases considering other welfare issues, such as contact, capacity to consent to sexual relations and deputyship, tenants have appeared in several cases where media access to the court has been in issue, including a case where social media such as Twitter and Facebook publications were banned for first time in an injunction to protect the privacy of the patient.
Notable highlights include acting in Re MN, a case concerning the provision of accommodation and a care package for a young man with cerebral palsy. This is a case of huge significance which concerns the fundamental nature and ambit of the CoP’s jurisdiction and powers. It is only the second case regarding the Mental Capacity Act 2005 to be heard in the Supreme Court.
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