These days the family courts are under scrutiny as never before. Included in that scrutiny is the Court of Protection, a body still, it seems, surrounded in some mystery. Notwithstanding that, its decisions have often in recent times been the subject of intense media interest.
Of course, the President of the Family Division has specifically directed that more judgments of the Court of Protection should be published. The aim of this was to counter the allegation that the court operates a system of secret and unaccountable justice. Quite how successful this has been I’m not sure, but we certainly have a clearer picture than ever of the work of the court.
This month alone there have been a number of reported cases which demonstrate the breadth of the work undertaken by the court, more than one of which has received attention from the national media.
An example of that attention occurred on the 1st of May, when the court dealt with an application by a newspaper publisher to be joined as a party to proceedings concerning a 94 year old woman. The case had already been before the Court of Protection on the 26th of February, when Ms Justice Russell found that the woman lacked capacity to manage her affairs, due to mental impairment. The case attracted the attention of the media and Associated Newspapers Limited, the publishers of the Daily Mail, sought to be joined as a party to the proceedings. They argued that they had a “legitimate interest” in the proceedings, as there was a strong public interest in them. The President of the Family Division, however, did not accept the argument and ruled that the paper had no standing to be joined as a party to the proceedings.
Moving on, on the 16th of May the court handed down judgment in a case involving applications by an NHS Trust for declarations regarding the capacity, residence and medical treatment of a 25 year old man with severe learning disability, developmental disorder, autism, epilepsy and diabetes. The man had lived with his parents all his life and was cared for primarily by his mother. However, there was a dispute between the family and professionals as to how best to care for him. As a result the NHS Trust sought declarations from the court that it would be in his best interests to reside in a hospital and undergo treatment there, until such time as he is able to be discharged. This sad case has not actually concluded, but the judgment demonstrates both the difficulties involved in Court of Protection work and the sensitivities required by those undertaking the work, in particular the judiciary.
On the 21st of May judgment was handed down in another case involving an application by an NHS Trust relating to the performing of a caesarean section, if the mother lacked capacity to consent to medical treatment. The mother is 24 years old and suffers from a condition known as ‘hebephrenic schizophrenia’, which has had a severe adverse impact on her day to day life. In the event the court did not have to make a decision on the Trust’s application, as it was eventually agreed that the mother did not lack capacity, and she subsequently gave birth by caesarean section.
Lastly (although far from the last case the Court of Protection has had to consider this month) on the 22nd of May the court handed down judgment in Sheffield Teaching Hospitals NHS Foundation Trust v TH & Anor. This was another very sad case, concerning the treatment of a 52 year old man in a minimally conscious state. One of the issues to be considered by the court is whether the Trust should continue to give the man life sustaining treatment. Again, the case has not yet concluded, but it is another demonstration of the difficult and often very complex work of the court.
As I indicated above, I think this short selection of cases, representing just one month in the work of the Court of Protection, demonstrates clearly the breadth of the work of the court. It also certainly increases my respect for those who work in the court, and for the judges who have to make the decisions.
Photo by Santi Villamarín via Flickr