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 QC, is highly ranked by the independent legal directory, Chambers & Partners, which describes Serjeants’ Inn as “the strongest chambers for serious medical treatment cases in the Court of Protection in terms of the number of experienced counsel and the amount of work they undertake.”
Our expertise in this area is underlined by the fact that we write and edit the only comprehensive legal text book in this field, Medical Treatment: Decisions and the Law. The third edition, edited by Christopher Johnston QC, was published in November 2016 and was written by 23 members of Serjeants’ Inn.
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 the key cases over the last 12 months or so, including:
- Re MN: Fiona Paterson is instructed as junior counsel for the Clinical Commissioning Group in this appeal in which the Supreme Court will rule on the jurisdictional limits of the Court of Protection and the extent of parties’ rights under Articles 6 and 8 of the European Convention on Human Rights.
- 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 QC, 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 QC 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 QC acted for the NHS trust and Katie Gollop QC 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 QC 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.
For over 25 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.
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.
Members of chambers advise and act in cases regarding financial issues, deputyship and statutory wills.
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.
Recent 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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