Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312  (here)

The Court of Appeal has helpfully clarified the legal test to be applied in the Court of Protection (‘CoP’) when considering an application for an injunction.

The Background

G, a 27-year-old woman who suffers with serious progressive disabilities had, since the age of 13, been an inpatient in a paediatric hospital operated by the NHS Trust. In December 2021, Hayden J found that it was “irreconcilable with her dignity” for G to remain in a paediatric ward and so declared that it was in her best interests to be discharged to a specialist care home (see judgment here). Her parents and grandmother, who wanted G to live at the family home, opposed G moving to the care home.

The Trust and CCG[1] believed that the parents and grandmother were making determined efforts to frustrate G’s transfer and so applied for an injunctive order binding them to the terms of a behavioural framework. When the matter came before Hayden J he granted injunctive relief in respect of all three adults.

The parents and grandmother appealed that order arguing, amongst other grounds, that the Vice-President had been wrong to adopt and apply the test of “necessary and expedient”, found within s.16(5) Mental Capacity Act 2005, as the basis for granting the injunctions.

The full episode, hosted by Christopher Johnston KC featuring Claire Watson KC is available here.

In this episode, Chris and Claire discuss medical treatment decisions related to assisted reproduction, as discussed in chapter 11 of the new fourth edition of Medical Treatment: Decisions and the Law.

Chris and Claire look at XX v Whittington Hospital NHS Trust, Warren v Care Fertility Ltd and the recent case of Jennings v HFEA while discussing the difference between Californian surrogacy versus UK surrogacy, the interpretation of legislation by judges in line with article 8 of the Human Rights Act and the exporting and importing of gametes.

This podcast is also available on Spotify and Apple Podcast.

The full episode, hosted by Christopher Johnston QC featuring Sophia Roper QC, is available here.

In this episode, Chris and Sophia discuss medical treatment decisions for minors, as discussed in chapter 4 of the new fourth edition of Medical Treatment: Decisions and the Law. Chris and Sophia consider the process by which the courts, including the appellate courts, reach decisions in a wide range of difficult cases including that of Tafida Raqeeb, where the parental views prevailed over those of the hospital Trust.

Members of Serjeants’ Inn Chambers have represented parties in recent cases concerning the withdrawal of life-sustaining treatment from children, including the proceedings relating to Tafida Raqeeb, Charlie Gard, Alfie Evans and Archie Battersbee. 

This podcast is also available on Spotify and Apple Podcast.

Listen to the preview episode with the hosts here.

This podcast, hosted by Christopher Johnston QC and Sophia Roper QC, will feature different authors in each episode, looking further and discussing the various topics covered by the book.

The podcast will complement the textbook, Medical Treatment: Decisions and the Law, which is edited by Christopher and Sophia, with chapters authored by a team of 27 barristers at Serjeants’ Inn Chambers and published by Bloomsbury Professional in 2022. It places medical decision-making in its legal context and provides practical guidance on the most ethically challenging cases that face the courts. It explains how the Mental Capacity Act works in practice and how the courts and lawyers wrestle with and resolve problems relating to the very essence of life: what is life? what is an acceptable quality of life? what treatment is so burdensome that it should not be attempted? These questions are posed, not in the abstract but, in real – often desperate, often urgent – situations.

To find out more about their practices, please see our website here. To find out more about the book, please click here.

Manchester University NHS Foundation Trust v William Verden (By His Litigation Friend, The Official Solicitor) and anor. [2022] EWCOP 8 Feb 2022 (here)

Mrs Justice Arbuthnot has sent out a clear message to all parties in Court of Protection proceedings that, when applying for reporting restrictions, there is an expectation that a full account will be given to the judge of any media coverage that had already taken place.

Establishing the best interests of William Verden is an extremely challenging task from a clinical, ethical and legal standpoint.   In early March ’22 a judge of the Court of Protection (‘CoP’) will decide whether this young man with moderate to severe learning disability, autism and ADHD, whose associated behavioural disturbances make it difficult for him to tolerate invasive medical procedures, should have the opportunity to undergo a kidney transplant that has at best a 50% prospect of success.

What brought the parties into court on 8 February was the question of whether William’s anonymity should be preserved by the standard Transparency Order (perhaps better described as a Reporting Restrictions Order or ‘RRO’) that had been made by a judge, on the papers, when this serious medical treatment case was issued.