Wiltshire County Council v RB & Ors
[2023] EWCOP 26
VT v NHS Cambridgeshire And Peterborough Integrated Care Board
14 February 2024
[2024] EWHC 294 (Fam)
Court of Protection
An elderly woman was moved to a care home without proper legal representation. A judge quickly decided she couldn't go home without a full hearing. A higher court reversed the decision, saying the first judge didn't have enough information and hadn't given fair warning about making a final decision so quickly.
Key Facts
- •VT, a 78-year-old woman with a history of schizophrenia, was moved to residential care from her home due to concerns about her safety.
- •VT was not represented at initial hearings regarding her move and subsequent deprivation of liberty.
- •VT wished to return home and her legal representatives argued for a full hearing to determine her best interests.
- •The ICB unexpectedly sought a summary determination at a case management hearing, stating that returning VT home would be clinically unsafe.
- •The Circuit Judge (CJ) made final decisions regarding VT's capacity and best interests, ruling against her return home, without the Section 49 report and based primarily on submissions.
- •The Official Solicitor appealed the decision on VT's behalf, arguing procedural unfairness and insufficient evidence.
Legal Principles
Overriding objective in Court of Protection cases: dealing justly, proportionately, expeditiously, and fairly, ensuring P's interests are properly considered.
Court of Protection Rules 2017
The Court of Protection has powers to actively manage cases, including deciding which issues require full investigation and hearing and which do not, via Rule 2.5 and the Civil Procedure Rules.
Court of Protection Rules 2017, Rule 2.5; Civil Procedure Rules
Summary determination powers exist but must be exercised with restraint, particularly when deprivation of liberty is involved and Articles 5 and 6 are potentially engaged.
KD & Anor v London Borough of Havering [2009] EW Misc 7; N v ACCG & Ors [2017] UKSC 22
Sufficient cogent evidence and proper enquiry are always required before curtailing or depriving an adult of their liberty.
CB v Medway Council & Anor (Appeal) [2019] EWCOP 5
Any deprivation or limitation of legal capacity must be based on sufficiently reliable and conclusive evidence.
Sýkora v The Czech Republic, 22 November 2012
Procedural fairness requires appropriate notice, especially when final decisions are contemplated, which may vary depending on the circumstances.
Sections 35-38
Outcomes
The appeal was allowed.
The CJ's decision was not properly open to them due to insufficient evidence (lack of Section 49 report), procedural unfairness (insufficient notice of summary determination), and inadequate exploration of alternative options. VT's interests were not properly considered.