The High Court court term ends today in England & Wales, 31 July. Not least because the next 39 Essex Chambers Mental Capacity Report will not be published until September, I thought a brief end of term report might be of assistance.
Perhaps the most important case concerning the Court of Protection was handed down today. In Re ST [2024] EWCA Civ 896, the Court of Appeal confirmed the need for caution before moving from identifying that a person appears not to believe the professional (in ST’s case, their doctors) to concluding that they lack capacity to make the relevant decisions. A summary of the case can be found here.
Questions of when life-sustaining treatment can be considered futile (and what precisely futility might mean) arose in Re XY [2024 EWCOP 37 (T3), in which Hayden J also had to engage in the exercise of the “best interpretation of will and preferences” (to use CRPD language) as regards an alternative proposal being put forward by P’s family. In NHS NW London ICB [2024] EWCOP 35, Theis J addressed the fact that, whilst the court can decide on behalf of the person unable to do so to refuse the continuation of life-sustaining treatment, it cannot authorise any steps actively to hasten their death when that treatment has been withdrawn. It should be noted that this position would not change even if Lord Falconer’s recently introduced Assisted Dying for Terminally Ill Adults Bill makes it onto the statute books. And in Re AA (Withdrawal of Life-Sustaining Treatment: No Best Interests Decision) [2024] EWCOP 39 (T3), Henke J considered what decisions are for the courts, and what decisions are for clinicians.
In Re P (Vulnerable Adult: Withdrawal of Application) [2024] EWHC 1882 (Fam), Gwynneth Knowles J considered the limits of the inherent jurisdiction in the context of Article 3 ill-treatment at the hands of an identified individual (in that case, the father of P).
Of considerable operational importance is the launch by Social Work England of new education and training standards for AMHP and BIA courses, to be used to approve new courses and reapprove existing courses from summer 2025.
In the mental health context, the big news is that the King’s Speech contained a commitment to bring forward a Mental Health Bill. For more on this, see here. Two cases were also reported shedding light on relevant matters:
- In North Tees and Hartlepool NHS Foundation Trust & Anor v KAG & Ors[2024] EWCOP 38 (T3) Victoria Butler-Cole KC (sitting as a Deputy High Court Judge) made clear that the patient is objecting to medical treatment for mental disorder being provided under Part 4 Mental Health Act 1983 is not, itself, a reason for the treating Trust to bring an application to court to determine whether it should proceed.
- Right Care, Right Person made its first reported appearance in case-law (in slightly unusual circumstances) in in Platt v The High Court of the Republic of Ireland[2024] EWHC 1821 (Admin).
In the wider context, the High Court rejected a judicial review challenging the decision of the former Secretary of State for Health (but defended by the current Secretary of State for Health) to pass secondary legislation limiting the prescription, sale or supply of puberty blockers for the purposes of puberty suppression to children and young people under 18 who are experiencing gender dysphoria and gender incongruence: see R(Transactual CIC & Anor) v Secretary of State for Health And Social Care & Anor [2024] EWHC 1936 (Admin). In this context, the report by Professor Louis Appleby (the Department of Health and Social Care adviser on suicide prevention) of his review of suicides and gender dysphoria at the Tavistock and Portman NHS Foundation Trust is important given his conclusions that “the claims that have been placed in the public domain do not meet basic standards for statistical evidence.”
And in the Scottish context, I hope all those who are in a position to do are flexing their fingers to start writing responses to the consultation on proposed changes to the Adults with Incapacity (Scotland) Act 2000 as the first stage in the implementing of the much more wide-ranging changes proposed in the Scottish Mental Health Law Review.
I shall be doing my best to hide from social media until the start of September, but will resume normal service then.
