Re G (Court of Protection: Injunction)

• Jurisdiction: England & Wales
• Judge: Lord Justice Baker
• Judgment Date: 11 October 2022
• Neutral Citation: [2022] EWCA Civ 1312
• Docket Number: Case Nos: CA-2022-001380 CA-2022-001414
• Court: Court of Appeal (Civil Division)

Re G (Court of Protection: Injunction)

[2022] EWCA Civ 1312

Before:

Lord Justice Baker

Lord Justice Phillips

and

Lord Justice Nugee

Case Nos: CA-2022-001380

CA-2022-001413

CA-2022-001414

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COURT OF PROTECTION

MR JUSTICE HAYDEN

VICE-PRESIDENT OF THE COURT OF PROTECTION

[2022] EWCOP 25

Royal Courts of Justice

Strand, London, WC2A 2LL

Nicola Kohn (instructed by Irwin Mitchell LLP) for the First Appellant

John McKendrick KC (instructed by Simpson Millar) for the Second Appellant

Ian Brownhill (instructed by MJC Law) for the Third Appellant

Michael Mylonas KC and Olivia Kirkbride (instructed by Hill Dickinson LLP) for the First and Second Respondents

Sophia Roper KC and Benjamin Harrison (instructed by the Official Solicitor) for the Third Respondent (by her litigation friend, the Official Solicitor)

Hearing dates: 31 August and 1 September 2022

Approved Judgment

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 11 October 2022.

Lord Justice Baker

1 This is the judgment of the Court to which all members have contributed.

2 On 30 June 2022, Hayden J, sitting in the Court of Protection in proceedings under the Mental Capacity Act 2005 (“the 2005 Act”) concerning a 27-year-old woman, G, made an injunctive order against three members of her family – her father, LF, mother, M and grandmother, N. Each of those three individuals filed a notice of appeal against the injunction. Permission to appeal was granted on 22 July 2022.

3 The appeals give rise to a legal issue of some importance – the legal test to be applied by the Court of Protection when considering an application for an injunction.

Background

4 G suffers from a serious degenerative neurological condition. From an early stage in her life, it became clear that she was not meeting developmental milestones, with significant limitations in her motor skills, coordination and expressive communication. She had difficulty feeding and at the age of 2 ¹/₂ a gastrostomy tube was inserted. Her head circumference failed to increase as it should have done with age. Brain scans and imaging revealed that white matter myelination, the development of sheaths around the nerves in the brain, was arrested at a primitive stage. The cause of these profound problems is unclear and there is no agreed diagnosis for G's condition. Despite these very serious difficulties, she was seen by all as a happy little girl who was a source of great delight to her parents.

5 At the age of thirteen, G was admitted to hospital with a significant chest infection. Whilst there she sustained a fractured femur. She was transferred to a paediatric intensive care unit at a hospital administered by the first respondent NHS Trust. The clinicians diagnosed osteosarcoma in the right leg and she underwent an amputation of the leg up to the hip. They also diagnosed her as suffering from osteopenia and osteoporosis and, as a result of this bone fragility, she then suffered a spontaneous fracture of the left femur.

6 Although she attained the age of majority over eight years ago, G has remained in the paediatric hospital. As Hayden J observed in an earlier judgment in December 2021 (reported at [2021] EWCOP 69) at paragraphs 15–16:

“The reality therefore is that G has been in the hospital for the entirety of her adult life as well as a significant part of her childhood. This is an entirely unprecedented situation for the nurses, doctors and indeed for the lawyers. G is not a child, she is an adult with serious progressive disabilities …. it is axiomatic that this children's hospital, however great its resources and skills, is ill-equipped to meet the emotional, medical and physical needs of this young woman.”

Although she received excellent care there, all parties agreed that it was inappropriate for her to remain in a facility intended and designed for children. There was, however, profound disagreement about what should happen next.

7 Throughout her time at the hospital, G's parents had been very closely involved in her care. They lived in accommodation provided by the hospital. Her father in particular visited G every day and took an intense interest in her condition and treatment. Unusually, but with the hospital's agreement, he took an active role in her clinical care, including her catheterisation. In contrast, her mother did not visit as regularly but with the father took G out of the hospital for several hours every day and took a particular interest in arranging activities and treats for her daughter. It was the parents' proposal that G be discharged from hospital directly back to their care at home. In 2013, a plan to discharge her home was formulated and progressed to the extent that some modifications were carried out to the parents' property. In the event, for reasons that are not agreed and were not resolved in this litigation, that plan was never put into effect.

8 There is no dispute that G lacks capacity to make decisions as to her residence, care and treatment within the meaning of s.2 of the 2005 Act. In 2017, the father filed an application under s.21A of the Act challenging a standard authorisation granted by the relevant local authority authorising the deprivation of her liberty. In the course of the hearing, it was identified that there was a dispute between the family and the Trust's clinicians as to whether, and if so how, G should be discharged into the community. The treating clinicians acknowledged that a return home should be the ultimate aim but were of the view that, as a first step, G should move to a residential unit. The proceedings continued as a “best interests” application under s.16 of the 2005 Act, with the Trust substituted as the applicant, the father becoming a respondent, and the Official Solicitor appointed as G's litigation friend. There was considerable delay in the proceedings while an appropriate independent medical expert was identified and options for a placement were explored. In December 2020, the Clinical Commissioning Group for the area where the hospital is located was joined as a party, having been identified as the public body responsible for funding any placement.

9 In about June 2021, recognising the difficulties G would face returning to the family home, the parents took out a lease on a bungalow not far from the hospital and proposed that on discharge G move there immediately. The Trust and CCG, on the other hand, maintained their position that there needed to be an intermediate residential placement, and to that end had identified a residential unit, known as “A House”.

10 The hearing of this best interests application took place before Hayden J over five days in December 2021. In addition to the issue of her future residence, there was a dispute between the clinicians and the family about whether the central venous line (“CVL”) which had been inserted in G for some years should be maintained or removed. At the conclusion of the hearing on 13 December, the judge delivered an ex tempore judgment and made an order pursuant to s.16(2) of the 2005 Act (a) consenting on G's behalf to the removal of the CVL and (b) deciding on her behalf that she should be discharged from the hospital and move to A House. He gave directions for the preparation and filing of a care plan and the convening of a best interests meeting between all parties to consider whether agreement could be reached about the plan and, if not, identify the issues requiring determination by the Court.

11 In his judgment, the judge paid tribute to the dedication and care which the parents, and in particular the father, had shown to G. Of the father's strong objection to the proposed move to A House, the judge observed (paragraph 56 – 57):

“56. …. Properly analysed, LF's reaction, in my assessment is essentially visceral, borne of panic, apprehending and understandably so, a diminution of his day-to-day involvement in his daughter's life. Though I consider his objections to be driven more by fear than by reason, I have no doubt at all that it is motivated by his concern for his daughter's welfare. It reflects LF's unconditional love for his daughter. In the witness box, LF did not really engage with the competing evidence. He could not identify the balance that requires to be struck between the two alternative plans. The door was simply closed in his mind to any advantages that the home might have to offer or, more importantly, how a full assessment of G's needs, outside the hospital setting might ultimately strengthen the prospects of a reunification with her family.

57. That does not bode well for the future, but I hope will not be a blockade to the objective that LF truly desires. What he wishes, of course, is to have his daughter come back and live in a home where he and his partner can care for her.”

12 The judge acknowledged that, if all went well, this would ultimately be in G's best interests, observing (paragraph 60):

“…the emotional benefit to G of being able to live with her parents cannot be underestimated. In my view, it is of magnetic importance.”

He concluded, however, (paragraphs 71 – 72):

“71. … I have ultimately had very little hesitation in coming to the clear conclusion that that would not, at this stage, be the right plan for G. It is fretted with risk. It has the very real danger that it might set G up to fail. Were it to do so, it is probably the case that she would have no further chance to return to her parents' care.

72. There must be a recognition that the timescales contemplated for the future plan must be driven wholly and entirely, by a clear identification of G's needs: it is necessary for her to readjust to life outside the hospital environment; it is...