Sarah Simcock

Court of Protection

experience & expertise

Sarah’s experience in medical treatment cases includes urgent applications for life saving medical treatment and non-urgent medical treatment such as for HIV, dental surgery and chronic physical conditions.  She also has experience of “end of life” withdrawal of medical treatment and issues arising in relation to the validity and interpretation of advanced directives.  Sarah regularly deals with cases involving a deprivation of liberty and use of force to provide medical treatment.

Many of Sarah’s cases have involved the interaction between the Mental Health Act 1983 and the Mental Capacity Act 2005 as well as issues of public law.

Sarah frequently acts in welfare cases in the Court of protection in applications relating to best interests in relation to residence and social, nursing or medical care.  These cases have involved the removal of elderly clients into institutional care or their return home from residential care, DNR decisions and residence and contact disputes as well as issues surrounding forced marriage. Sarah has also advised in cases involving allegations of serious sexual assault against adults lacking capacity by family members. Challenges to standard authorisations of a deprivation of liberty regularly arise in Sarah’s cases involving whether residential placements involve a lawful deprivation of liberty or are too restrictive in their nature and whether alternative residential or care options should be explored.

Sarah’s approach in all her cases is one of collaboration and often cases initially involving stark disputes between the parties are resolved without the need for fully contested hearings through discussion and agreement between the parties, sometimes involving attendance at round table meetings. Sarah prides herself on giving sound, practical advice with a thorough grasp of the law. She is known as a measured advocate and for her clear, concise and pragmatic approach.

Sarah is a co-author of Medical Treatment Decisions and the Law and provides training to lawyers and clinicians on the Mental Capacity Act 2005.

cases & work of note

• Duckett (2018)
  Representing the Local Authority in proceedings under the inherent jurisdiction of the High Court in relation to an 82 year old woman with dementia who retained capacity to make decisions about her welfare but was very vulnerable.  The case involved allegations of undue influence and abuse by her husband such that she was unable to exercise real and genuine consent to a package of care recommended by the Local Authority as necessary to keep her safe and meet her needs. The court granted a final injunction against her husband preventing him from interfering with the care package and from subjecting carers, local authority employees and his wife to abuse.
• MC (2018)
  Acting for the Local Authority in a welfare application in the Court of Protection concerning an elderly woman with dementia to determine where it was in her best interests to reside and what care package was appropriate given her lack of capacity to make decisions for herself. The court was asked to consider two residential options, remaining in her current care home or moving to an alternative care home out of the area to be nearer to her family, in particular her niece.  Her niece sought to move her and the Local Authority and Official Solicitor opposed the move. The court found that the balance was tipped in favour of her remaining where she was due to the stability and familiarity she had there which was not outweighed by the prospect of greater family contact given that the evidence was that family life was not something of great importance to MC.
• RB (2017)
  Representing the applicant NHS Hospital Trust in an application in the High Court for declarations that it was lawful and in RB’s best interests to undergo a surgical procedure to remove cancerous lesions from his face and undergo skin grafting to the area.  RB was a 78 year old man with a diagnosis of mixed learning disability, and who therefore lacked capacity to make decisions about his care and medical treatment.  The difficulty was how the risk that his non-compliance with treatment would be managed as RB tended to try to pick at the lesions and the success of skin-grafting depended on the grafts being undisturbed. The judge authorised further restrictions on RB’s liberty including the use of medical mittens and approved the treatment.
• NA (2017)
  Representing NA, by the Official Solicitor, in a medical treatment application in the High Court.  NA was a man with depression and a possible underlying delusional or psychotic disorder who had been admitted to hospital due to concerns over his physical health and the state in which he was living. He suffered from ulcers to his legs which he was completely unco-operative in having assessed, cleaned and treated.  A further issue was his discharge from hospital and where he should reside thereafter.  The NHS Trust applied for declarations that he lacked capacity to make decisions about his medical treatment and that it was lawful to assess, clean and provide initial treatment for his leg ulcers using reasonable force if this was necessary.  The judge approved the obtaining of further evidence re capacity as his diagnoses were not clear due to his complete non-engagement with Trust clinicians’ assessments of him and approved an initial assessment and treatment plan with the use of minimal force if necessary.
• ZNM [2017]
  Representing the NHS Hospital Trust in an emergency application in the Court of Protection for declarations that it was lawful and in ZNM’s best interests to undergo a surgical procedure comprising angioplasty and debridement of her right foot and if clinically necessary, a below knee amputation. ZNM was a 69 year old woman who suffered from diabetes and as a result suffered infected ulcers in her right foot which developed into gangrene leading to systemic sepsis. As a result of her underlying psychosis and dementia she did not have capacity to make decisions about her medical treatment and believed her leg to be getting better. The NHS Trust made the emergency application to the Court of Protection because ZNM refused to undergo the surgery but was becoming increasingly unwell with the consequent risk that she may die and that her foot would become beyond saving necessitating a below knee amputation. The judge granted the application.
• JP [2017]
  Representing the brother of a 34 year old man who had suffered a serious acquired brain injury in an emergency application over the course of a weekend. JP’s family wished to be given a period of 24 hours in order to gain a second neurology opinion in relation to JP before the hospital were allowed to carry out brain stem death testing which may then lead to the withdrawal of his life support. The NHS Trust caring for JP resisted the application on the grounds that it was good medical practice to undertake the tests once there were clinical indications from other testing to do so. The judge acceded to the application allowing the family further time to seek a further opinion before the treating clinicians could go ahead. The family and the Trust were able to come to an agreement the following day as to the timing and circumstances that brain stem death testing and withdrawal of life support could be undertaken.
• AF [2017]
  Representing a family member of AF, a 42 year old man with a learning disability in Court of Protection proceedings under s16 Mental Capacity Act 2005 brought by her to determine whether AF had capacity to make decisions about his residence, care and contact with her. AF had lived with his aunt for a period of 18 years before having an extended stay at a local authority respite placement. From there he had moved to a permanent placement without any involvement of his aunt in the decision making. She challenged the local authority’s assessment that AF retained the capacity to make decisions about his residence, care and contact with her and sought best interests declarations.
• AMQ [2017]
  Acting for an 84 year old man with dementia by his litigation friend in a welfare application in the Court of Protection to determine where it was in his best interests to reside and what care package was appropriate. He wished to return home to live with his grandson and did not wish to remain in residential care but there were safeguarding concerns in relation to the home environment and his grandson’s past behaviour.
• ST [2017]
  Representing a local authority in Court of Protection proceedings pursuant to s.21A Mental Capacity Act 2005. ST was a 56 year old woman with a learning disability and complex physical health needs including relating to an atypical eating disorder.  She had resided at a care home since 2012 but had recently been objecting to remaining there. The application related to determining ST’s best interests in relation to residence and care and whether her current placement represented the least restrictive option for her such that her deprivation of liberty there was lawful given her objections. An issue also arose as to whether the correct deprivation of liberty safeguards procedures has been properly followed in the past and whether there had been a previous unlawful deprivation of liberty such that ST was entitled to make a claim for damages under the Human Rights Act 1998.
• EC [2017]
  Representing a local authority in Court of Protection proceedings and proceedings in the High Court under its inherent jurisdiction in relation to its application to curtail contact between EC and his aunt and for best interests declarations in relation to his supported living accommodation placement and care plan. EC was a 33 year old man who suffered from treatment resistant schizophrenia who had only recently been discharged from a lengthy inpatient admission in hospital. The application was based upon psychiatric and social work evidence that unfettered contact by the aunt was detrimental to EC’s mental health and well-being and put his new supported living placement in jeopardy. EC’s aunt resisted the local authority’s application to put restrictions on the contact she was allowed with EC. The judge made declarations and orders that contact be restricted to that desired and initiated by EC himself only and approved his supported living placement and care plan as proposed by the local authority.
• XX [2016]
  Representing a young woman with a learning disability in Court of Protection proceedings concerning her capacity to consent to sexual relations and marriage, as well as contact with men including her fiancé. Complicated evidential issues arose in relation to the capacity evidence in this case, the expert psychiatrist having given her opinion that XX retained capacity in relation to decisions about sexual relations but not contact or marriage. As a result the proceedings also concerned best interests decisions in relation to these issues.
• CT [2016]
  Acting for elderly man with dementia by the Official Solicitor in welfare application in the Court of Protection to determine where it was in his best interests to reside and what care package was appropriate. The Local Authority were initially of the view that he should remain in residential care, but following extensive consideration between the parties of the options, the court approved the agreement of a trial return home in accordance with his wishes.
• AB and CD [2016]
  Representing elderly couple by the Official Solicitor in a welfare application in the Court of Protection who were resident in a care home in the presence of a dispute amongst family members in relation to where they should live and the nature of their care.
• JB [2016]
  Representing care home resident with dementia by the Official Solicitor in application by her to challenge the standard authorisation of her deprivation of liberty at the care home. She had been taken into residential care temporarily due to her home becoming uninhabitable but there had thereafter been no proper efforts to return her home in accordance with her wishes. The Court of Protection approved a care package allowing her to return home.
• HS [2016]
  Representing Polish man in welfare application in the Court of Protection in relation to residence and care best interests issues. HS was resident in a neurological rehabilitation unit and deprived of his liberty there. He remained there despite the fact that there was no further medical progress to be gained and agreement by the parties he should be discharged to residential care. However he wished to return home to Poland and there were questions as to whether this was possible and what interim measures in the UK were suitable.
• LB [2016]
  Representing young woman living in supported accommodation by the Official Solicitor in Court of Protection proceedings relating to a dispute between the family and local authority surrounding the care package provided in particular concerning whether it was the least restrictive option in various respects. Following a round table meeting the issues were narrowed by the parties such that the court was then able to make an order approving the final care plan.
• AL [2016]
  Representing an elderly woman with a learning disability and dementia by the Official Solicitor in Court of Protection proceedings in relation to a dispute over best interests as to residence between the family and clinical commissioning group. AL had lived with her sister for her whole life but had recently been taken into residential care due to concerns for her well-being and safety. The CCG were of the view she should remain there whilst her sister wished to continue to care for her at home.
• GA [2016]
  Representing NHS and Social Care Trust in Court of Protection proceedings as to the best interests of patient in relation to where he lives and what care he receives. GA had been living in the community but his physical and mental condition had deteriorated through disengagement with health and social services to such a degree that he was hospitalised. The Court was then concerned with where he should live upon his discharge from hospital and in trying to prevent any similar crisis in the future.
• OM [2016]
  Representing the clinical commissioning group responsible for commissioning accommodation and care for young man from Isle of Wight with learning disabilities and physical health problems. A crisis situation had arisen resulting in an urgent application to the Court of Protection when he had refused to leave his grandmother’s house to return to his residential care unit following a visit. A dispute arose as to his best interests in relation to where he should live pending more permanent and suitable accommodation being found for him on the Isle of Wight.
• TD [2015]
  Advising NHS Trust in relation to potential Court of Protection proceedings in relation to the medical treatment of a patient detained under the Mental Health Act and lacking capacity to make decisions concerning medical treatment for both physical and mental health conditions. The patient had a diagnosis of schizoaffective disorder and was HIV positive but due to delusional beliefs periodically refused testing to monitor her physical condition and treatment for HIV. Sarah advised on whether proceedings needed to be instituted, procedures to be followed and on obtaining necessary evidence.

PUBLICATIONS

Sarah co-authored chapter twelve: Pregnancy and Childbirth in the fourth edition of the book Medical Treatment: Decisions and the Law, edited by Christopher Johnston KC and Sophia Roper KC and written by 27 members of Serjeants’ Inn.