COURT OF PROTECTION
- Health and Welfare
- Capacity and Best Interests
- Deprivation of Liberty
PRACTICE SUMMARY
Susan specialises in Court of Protection, community care and adult social care work.
Susan is experienced in representing clients who have Dementia, learning disabilities, mental health issues, behavioural or communication issues and those on the autistic spectrum.
Having worked for the Official Solicitor, Susan has extensive knowledge of serious medical treatment cases, including end of life decisions. In these sensitive matters she has acted for both patients and their families.
Susan has represented local authorities and been involved in many cases concerning children transitioning into adult care.
Susan’s work covers areas of mental capacity, human rights, social care and financial decision making in the Court of Protection. Susan advises and represents statutory bodies as well as adults and children who lack capacity to make specific decisions and their families. She is often instructed by the Official Solicitor for the person who lacks capacity in Court of Protection proceedings.
Susan provides expertise accumulated before and since the implementation of the Mental Capacity Act 2005, in all areas of mental capacity law. This includes health and welfare as well as property and affairs in the Court of Protection, the Inherent Jurisdiction and the interface with family proceedings.
Susan’s work involves questions relating to care arrangements at home, residence in care homes and supported living accommodation, contested contact arrangements, capacity to engage in sexual relations, decisions to marry, use contraception, access the internet and use social media.
Susan frequently acts in cases involving deprivation of liberty challenges under Section 21A Mental Capacity Act 2005. She is a known expert in serious medical treatment issues and matters concerning children and vulnerable adults. Susan also acts in cross-border disputes and contentious property and affairs cases.
Susan has extensive experience in pursuing and conducting alternative dispute resolution and mediation. She regularly chairs court-ordered round table meetings. She acts with sensitivity and strives to promote dignity in this complex area of practice.
NOTABLE CASES
PCT, v P, AH & A Local Authority (2009) COPLR Con Vol 956 - In one of the very first cases issued in the newly constituted CoP, Hedley J determined:
(1) the issue of P's capacity in relation to his medical treatment for uncontrollable epilepsy, contact with his adoptive mother and capacity to conduct proceedings;
(2) P's best interests in relation to where he should live and his contact which posed "an essential conflict between representatives of the State who owe statutory duties to P on the one hand, and the view of his carer of 18 plus years standing in the other. Furthermore, it raises issues of significance in relation both to Articles 8 and 5 of the European Convention of Human Rights".
Susan acted for P thorough his litigation friend, the Official Solicitor. P's legal costs were funded by the Legal Aid Agency. The court ordered that it was in P's best interests to reside at his supported living placement where he was deprived of his liberty with significant restrictions on his contact. This case stated when it is appropriate for the state to interfere in the private and family lives of incapacitated persons.
Re SK (2012) EWHC 1990 (COP) - Dealing with concurrent Court of Protection and Personal Injury proceedings.
Susan was instructed by the Official Solicitor to represent a patient with 2 acquired brain injuries whose residence, care package, contact and capacity to marry were in dispute.
PCT v P [2011] 1 FLR 287 - Susan was instructed by the Official Solicitor on behalf of P.
Addressing the MCA 2005 and decision making capacity, Hedley J, analysed the capacity to use or weigh information thus:
"the capacity actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate one to another".
North Yorkshire County Council v MAG (2015) EWCOP 64 - This case explored when a deprivation of liberty is lawful or unlawful and whether the Court of Protection should explore the Council's care plan. Susan was instructed by the Official Solicitor who acted as litigation friend for a young man with autism, learning disabilities, no verbal communication and cerebral palsy who required support for all his daily living needs. The Council appealed the first instance judge's decision that it was unlawful to deprive MAG of his liberty in his current placement. Having visited MAG in his flat, the first instance judge had found the placement did not meet MAG's needs, taking into account the insufficient room to manoeuvre a wheelchair so MAG mobilised on his bottom using his hands and knees causing him physical difficulties and infection. Prior to the Appeal the Council did provide a bespoke placement which met MAG's needs, including access to a safe garden area.
PC & Anor v City of York Council (2013) EWCA Civ 478 - Susan was instructed by the Official Solicitor to represent a highly vulnerable lady with learning disabilities whose husband, serving a prison sentence for serious sexual offences, was released on licence. The Court of Appeal considered how to apply the Mental Capacity Act 2005 capacity test, to avoid setting too high a bar, particularly when professionals are motivated to protect a vulnerable individual. McFarlane LJ identified the “space” between an “unwise decision” and one which “an individual does not have the mental capacity to take”.
Leeds Teaching Hospital NHS Trust v JF and CH [2018] EWCOP 32 Cohen J - Lead by Nageena Khalique QC, Susan 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. This case achieved a good outcome in a challenging and very sensitive end of life serious medical treatment case.
Publications
Susan was a contributor to the Court of Protection Practice 2019 and 2020 by LexisNexis.