Emma Sutton KC

EXPERIENCE & EXPERTISE

Emma’s Court of Protection practice is complemented by her public law practice in the fields of healthcare, mental health, education and community care.

Emma advises on all aspects of health and welfare and property and affairs and is highly experienced in applications involving serious medical treatment for children and adults, the former under the inherent jurisdiction (particularly in cases involving eating disorders), unusual deprivation of liberty cases (including advising and obtaining damages and/or other relief), and is regularly instructed on a consortium basis regarding how lawful authorisation should be sought for children and adults. She is very experienced in cases involving capacity disputes (including fluctuating capacity), and decisions regarding residence, care, contact, sexual relations, contraception and marriage (including forced marriage). Emma is also regularly instructed in property and affairs disputes which include retrospective capacity issues, statutory wills, authority for “gifting”, and the appointment and removal of deputies and attorneys which include multi-million pound estates in the UK and abroad. Many of Emma’s cases involve fact-finding hearings. In health and welfare applications this includes findings regarding physical, sexual, and emotional abuse, and in property and affairs cases the consideration of voluminous and complex accounting information. Emma also advises in civil claims where there are issues regarding the capacity of a person to enter contractual relationships.

Emma regularly provides bespoke training to solicitors and professional clients; particularly in relation to NHS and Local Authority duties, with a focus on mental health, mental capacity, education and commissioning.

CASES AND WORK OF NOTE

Re J (Transgender: Puberty Blocker and Hormone Replacement Therapy) [2024] EWHC 922 (Fam), Sir Andrew McFarlane, President of the Family Division
Instructed by the applicant father in a case concerning his child, J, a 16-year-old natal female who regarded himself as male. The issues for the court were whether J had capacity to consent to medical treatment in the form of cross-sex hormones (testosterone) from an unregulated internet provider, Gender GP, and even if he did, whether the court should nonetheless prevent such treatment by exercise of its inherent jurisdiction. A wider issue in the case concerned whether any treatment for gender dysphoria should have commenced without prior approval of the court. Due to agreement reached (that J would cease treatment pending assessment with a newly established UK clinic, Gender Plus), a determination was unnecessary. However, the President addressed the relevant legal framework and “urged any court faced with a case involving Gender GP to proceed with extreme caution before exercising any power to approve or endorse treatment that that clinic may prescribe”. The case continues. Please see here for the judgment.

Re AG (Welfare: Forced Marriage Protection Order) [2024] EWCOP 18, Theis J, Vice President of the Court of Protection
Instructed by the Official Solicitor on behalf of AG, a 24-year-old female, in a complex case involving multiple applications, including an application for a forced marriage protection order (brought by the local authority), an application under the inherent jurisdiction to restrict relations between AG and her parents due to coercion and undue influence (brought by the Official Solicitor), and for a determination of whether the circumstances of AG’s placement constituted a deprivation of her liberty for the purposes of Article 5 ECHR. In a detailed judgment, Theis J agreed with the submissions of the Official Solicitor on all contested points, and made a short term FMPO and IJ order and agreed that AG was not deprived of her liberty. The court also endorsed the “travel guidance” drafted by the Official Solicitor (as foreign travel remains a live issue) which will not only assist AG, but other parties in similar cases. The case continues. Please see here for the judgment.

Re IN (Withdrawal of CANH) [2023] EWCOP 32, Poole J
Instructed by the Official Solicitor (as litigation friend) on behalf of IN in response to an application of the Trust that it was lawful to withdraw clinically assisted nutrition and hydration, and for IN to receive palliative care only. IN had been assessed to have a lower awareness than a vegetative state and was in a permanent coma. IN was part of the Romanian Orthodox Church, and his family, who gave evidence from Romania, and another in the UK via an interpreter, opposed the application, primarily on religious grounds. At the conclusion of the oral evidence the Official Solicitor supported the application and submitted that the presumption to preserve life, on the specific facts, had been rebutted. Please see here for the judgment.

Gloucestershire Health & Care NHS Foundation Trust v FD & Ors [2023] EWHC 2634 (Fam), Francis J
Instructed by the applicant Trust for declarations and orders that it was not in FD’s best interests for active treatment against her wishes for her anorexia to be given under the MCA 2005 (it being submitted that she lacked capacity to make decisions regarding nutrition and hydration), and that FD’s treating clinicians were authorised not to take steps towards providing FD with nutrition and hydration by force under the MHA 1983. The court granted the application, principally as FD regarded her existence as “torture”, knowing that granting the relief could have fatal consequences. Please see here for the judgment.

North East London NHS Foundation Trust v Beatrice & Edward [2023] EWCOP 17 (No 1 – capacity), Mostyn J
Instructed by the Official Solicitor (as litigation friend) on behalf of Beatrice in an application concerning whether she had capacity to make decisions about her nutrition and hydration. Beatrice had a longstanding history of anorexia nervosa. If she had capacity, it was lawful for Beatrice to refuse treatment designed to achieve weight gain without which she would die. The court agreed with the position advanced by the Official Solicitor that Beatrice lacked subject matter capacity and was unable to conduct proceedings. The court concluded by stating that “this has been a very disturbing case to hear. If anyone needs proof that the Family Division judges sitting in, and the professionals who practise in, the Court of Protection and High Court hearing cases of this type have to do the most difficult, demanding, stressful, and draining work that the law requires to be done in any field, then they only have to read this judgment”. Please seen here for the judgment.

North East London NHS Foundation Trust v Beatrice & Edward [2023] EWCOP 60 (No 2 – best interests), Mostyn J
Instructed by the Official (as litigation friend) on behalf of Beatrice in an application concerning whether it was in her best interests to be forcibly fed against her wishes to achieve weight gain. Beatrice did not want to die, but also did not want her suffering to continue. Her father wanted active treatment to continue. In addition to the MCA 2005, the court considered Articles 2, 3 and 8 ECHR and agreed with the Official Solicitor that on the particular facts, respect should be given to Beatrice’s very strong opposition to compulsory feeding and treatment should not be forced upon her. Please see here for the judgment.

NHS Surrey Heartlands Integrated Care Board & JH [2023] EWCOP 2, Hayden J
Instructed by the applicant ICB for a declaration pursuant to section 26(4) MCA 2005 that JH had made a valid advance decision which applied to any invasive test or treatment (including life sustaining treatment), and that those treating JH did not incur liability for the consequences of withholding such tests or treatment from JH. JH was malnourished and would likely die without additional nutrition and hydration, which he was refusing. The court found that the advance decision was valid and as the Suicide Act 1961 decriminalised the act of suicide, JH was entitled to end his own life and should not be forced to engage in treatment against his will. The declarations sought were made. Please seen here for the judgment.

Newcastle Upon Tyne NHS Foundation Trust v MB (by his litigation friend, the Official Solicitor) [2022] EWCOP 43, Morgan J
Instructed by the Official Solicitor (as litigation friend) on behalf MB in response to a serious medical treatment application where declarations and orders were sought under the MCA 2005 for treatment in the form of high dose methotrexate under sedation in a critical care setting relating to a very rare type of cancer (T-cell lymphoma affecting the brain, skin and bone marrow). A number of clinicians and experts gave evidence over two days due to the significant risks to MB’s physical and mental health of a prolonged period of sedation in circumstances where a diagnosis of cancer had not yet been made, and where the treatment was not curative. The treatment plan was unique, but was ultimately approved due to the prospect of such treatment improving MB’s executive functioning. Please see here for the judgment.

Hinduja v Hinduja & Ors [2023] EWCOP 37, Hayden J, Vice President of the Court of Protection
Instructed as junior counsel on behalf of the first and second respondents in response to an application by G Hinduja for a stay of the implementation of a reporting restrictions order made in the course of property and affairs and health and welfare proceedings in the Court of Protection, pending an appeal to the Court of Appeal. A stay of only 48 hours was granted. Please see here for the judgment.

Manchester University NHS Foundation Trust v William Verden (by his litigation friend, the Official Solicitor) et Ors [2022] EWCOP 9, Arbuthnot J
Instructed by the Official Solicitor (as litigation friend) on behalf of William Verden, age 17, in a case concerning whether it was in William’s best interests to have a renal transplant, without which he would die. William had diagnoses of learning disability, autism and ADHD. The case involved complex legal and medical issues (including the risks associated with extended post operative sedation and ventilation), with wider issues of public importance as to how transplant decisions are made for those lacking capacity. The court agreed with the arguments put forward on William’s behalf, ultimately accepting that the presumption in favour of treatment which prolonged life had not been rebutted. There was significant public interest in this case. It was widely reported and commented on, including live ‘tweeting’ from court. Please see here for the judgment.

Royal Free London NHS Foundation Trust v AA & Anor [2021] EWCOP 68, Knowles J
Instructed by the Official Solicitor (as litigation friend) on behalf of AA in response to an application by a treating Trust which sought to withdraw life sustaining treatment due to AA’s irreversible brain damage. The preliminary issue before the court, however, was whether the UK or Pakistani courts had jurisdiction. The family argued that the Pakistani courts had exclusive jurisdiction having obtained a legal opinion from a former Pakistani judge. The court, however, accepted the submission of the Official Solicitor that AA was habitually resident in the UK (per paragraph 7(1)(a) or 7(1)(c) of schedule 3 MCA 2005) and that urgent relief was needed as the family sought to transfer AA to Istanbul and then Karachi by air ambulance following the hearing. The court also rejected the submission of the family that the Official Solicitor was not independent. Please see here for the judgment.

Manchester University NHS Foundation Trust, v KM (by his litigation friend, the Official Solicitor) & TM et Ors [2021] EWCOP 42, Keehan J
Instructed by the applicant Trust in a case where declarations and orders were sought under the MCA 2005 regarding the withdrawal of life-sustaining treatment concerning KM, a 52-year-old male, placed on an extracorporeal membrane oxygenation machine for 4 months, having suffered a cardiac arrest and contracted Covid-19. The application was vehemently opposed by KM’s family who expressed deeply held religious beliefs as Pentecostal Christians that God would intervene. Having heard expert evidence, clinical evidence and evidence from KM’s family and Pastor, and having described the application as “a very tragic and very sad case”, the court made the declarations sought. Please see here for the judgment.

University Hospitals Dorset NHS Foundation Trust, Dorset Healthcare University NHS Foundation Trust v Miss K (by her litigation friend, the Official Solicitor) [2021] EWCOP 40, Lieven J
Instructed by the applicant Trust in an urgent case where declarations were sought under the MCA 2005 that it was in Miss K’s best interests to undergo an elective caesarean section the following morning. Miss K was detained under the MHA 1983 and was thought to have capacity to make decisions regarding her obstetric care until shortly before the application was made; at which time, she was unable to effectively engage in conversations regarding her birth plan. Whilst the order sought was made, the court impressed the need for Trusts to bring applications of this nature in a timely manner. Please see here for the judgment.

An NHS Foundation Trust v ZA (by her litigation friend, the Official Solicitor) [2021] EWCOP 38, Cohen J
Instructed by the Official Solicitor on behalf of ZA, a 53-year-old women, in a case where the applicant Trust sought an order that it was in ZA’s best interests to undergo an above the knee amputation of her right leg due to chronic osteomyelitis and potential sepsis. This was opposed by the Official Solicitor (notwithstanding expert and clinical evidence to the contrary) due, in particular, to ZA’s clear and consistent objection, including at a time when she was capacitous. The court agreed and the application of the Trust was refused. Please see here for the judgment.

Chesterfield Royal Hospitals NHS Foundation Trust & Derbyshire Healthcare NHS Foundation Trust v TS (by his litigation friend, the Official Solicitor) [2021] EWCOP 41, Peel J
Instructed by the applicant Trusts regarding the proposed fitting of a pacemaker for TS’s heart block, it being asserted that TS lacked capacity to do so due to a delusional disorder. An order was sought that it was in TS’s best interests for a pacemaker to be fitted and to authorise the deprivation of TS’s liberty that was likely to arise due to his objection to the proposed procedure. The application was granted and the court praised the legal teams involved for the careful preparation of the case. Please see here for the judgment.

Andrew James Riddle v Public Guardian [2021] EWCOP 38, Lieven J
Instructed by the respondent in an application for permission to appeal the two judgments of Her Honour Judge Hilder reported as The Public Guardian v Andrew Riddle (Nos 1 and 2) [2020] EWCOP 41 which considered 40 cases in which the appellant sought (but was refused) authority to charge fees at solicitor rates or a specified rate. Four grounds of appeal were raised, each ground was opposed by the respondent, and the court ultimately agreed that none of the grounds gave rise to a reasonable prospect of success, and that there was no other compelling reason why the appeal should be heard. Permission to appeal was therefore refused. Please see here for the judgment.

A Midlands NHS Trust v RD (by her litigation friend, the Official Solicitor) et Ors [2021] EWCOP 35, Moor J
Instructed by the Official Solicitor on behalf of RD, a 37-year-old woman suffering from a severe form of anorexia nervosa. The Trust brought an application which sought declaratory relief that it was lawful not to take any steps towards forcing nutrition against her wishes, notwithstanding that by so doing, it might prevent her death. The application accorded with RD’s wishes and feelings and was not opposed by the Official Solicitor subject to certain changes being made to the care plan. The court made the declarations sought under the MCA 2005 and pursuant to the inherent jurisdiction of the High Court. Please see here for the judgment.

A Mental Health Trust v ER (by her litigation friend the Official Solicitor) & An NHS Foundation Trust [2021] EWCOP 32, Lieven J
Instructed by the applicant Trust in a case described by the court as a “particularly sad case” regarding the withholding of life sustaining medical treatment in the form of clinically assisted nutrition and hydration to a patient, ER, who had a long standing diagnosis of anorexia nervosa. The Trust did not seek to treat ER against her will (via the MCA 2005 or the MHA 1983), with the consequence that she would sadly die. ER had capacity to make decisions regarding other physical health needs and the court was concerned to ensure that ER’s capacity to make decisions regarding treatment for her anorexia was properly analysed. The court ultimately accepted the clinical and expert evidence that ER lacked capacity. Please see here for the judgment.

X NHS Foundation Trust & Y NHS Foundation Trust v Miss A [2021] EWCOP 17, Cohen J
Instructed by the applicant Trusts for declarations and orders under the MCA 2005 regarding the obstetric care of Miss A who was 38 weeks pregnant and detained under the MHA 1983. Miss A had a diagnosis of paranoid schizophrenia and was unable (as a consequence) to make decisions regarding her obstetric care. Although Miss A wanted a home birth and was strongly opposed to an elective caesarean section, the court agreed that a vaginal breech birth was not in her best interests due to the high risk that this would result in an emergency caesarean section, and as Miss A’s mental health difficulties were likely to prevent her from engaging in the demands of a natural birth. Having heard oral evidence from the obstetrician and psychiatrist, the court approved the applicant’s treatment plan. Please see here for the judgment.

The Newcastle Upon Tyne Hospitals NHS Foundation Trust v Robert Bourn (by his litigation friend Sharon Bourn) [2021] EWCOP 11, Lieven J
Instructed by the applicant for declarations and orders under the MCA 2005 regarding whether it was in the best interests of the respondent, Robert Bourn, to receive modified chemotherapy (Carboplatin + Etoposide) for metastatic germ cell cancer. The proposed treatment was not “first line” treatment for a patient with Mr Bourn’s diagnosis and young age, and as there was a difference of clinical opinion, a technical exploration of why an alternative regime was considered to be in his best interests was required. Having heard oral evidence from three clinicians, the court approved the applicant’s treatment plan. Please see here for the judgment.

UR (by her litigation friend, the Official Solicitor) v Derby City Council and NHS Derby and Derbyshire Clinical Commissioning Group [2021] EWCOP 10, Hayden J, Vice President of the Court of Protection
Instructed by the Official Solicitor (as litigation friend) on behalf of UR, a lady with longstanding complex mental health difficulties, in a case which originated as an application under the MCA 2005 regarding the administration of medication, nutrition and hydration via a PEG tube. The case culminated in an application regarding UR’s residence; specifically whether it was in her best interests to return to Poland to live with her family. The Vice President addressed the issue of whether UR could leave the jurisdiction due to the Covid-19 pandemic (with reference to the associated Regulations), and gave guidance for future cases involving the permanent relocation from the UK. The court determined that it was in UR’s best interests to return to Poland. Please see here for the judgment.

University Hospital of Derby and Burton NHS Trust & Derbyshire Healthcare NHS Foundation Trust v MN (by his litigation friend, the Official Solicitor) [2021] EWCOP 4, Hayden J, Vice President of the Court of Protection
Instructed by the applicants in an urgent case concerning life sustaining medical treatment for MN who had an obstruction in his kidney, suspected to be bladder cancer. CT examination and cystoscopy procedures were necessary and were due to be performed 4 days later. As a consequence of the severe restriction on the number of beds available for elective surgery due to the Covid-19 pandemic however, medical treatment could not be provided until March 2021. The main issues related to the application for an adjournment and whether the court should, on an interim basis, make orders regarding emergency treatment (including with restraint). The adjournment was allowed, and the interim orders made on the basis that certain conditions were satisfied. Please see here for the judgment.

Essex County Council v CVF (by her litigation friend the Official Solicitor), JF and Essex Partnership University NHS Foundation Trust [2020] EWCOP 65, Lieven J
Instructed by the Local Authority in a multifaceted / hybrid application regarding the personal welfare and property and affairs of CVF, a young person, who had complex needs arising from a learning disability and emotionally unstable personality disorder. The court agreed with the position of the Local Authority and made the welfare order sought in respect of CVF’s care and support needs, appointed the Local Authority as CVF’s deputy for property and affairs, and dismissed JF’s personal welfare deputyship application. Please see here for the judgment.

University Hospitals of Leicester NHS Trust v TC (by her litigation friend, the Official Solicitor) et Ors [2020] EWCOP 53, Cobb J
Instructed by the applicant Trust in a case concerning life sustaining medical treatment, and in what the court described as a “distressing and worrying case”. TC had advanced cancer of the larynx and without urgent treatment would die. The plan was for a prolonged period of treatment (at least 6 weeks) and the court was required to balance the presumption that it was in TC’s best interests to stay alive against her likely opposition, the restrictive nature of the plan, and the serious effect the treatment would have on TC’s profound depression. The court held that it was in TC’s best interests to be treated by way of chemoradiotherapy and to undergo endoscopic resection and/or a tracheostomy in accordance with the treatment plan. Please see here for the judgment.

Re ND (Court of Protection: Costs and Declarations) [2020] EWCOP 42, Keehan J
Instructed by the Official Solicitor (on behalf of ND) in a successful application for declaratory relief and costs arising from the failures of a Local Authority to discharge its statutory duties arising under the Children Act 1989 and the Care Act 2014 in respect of a young person, ND, who had particularly complex needs, but was ultimately found to have capacity to make decisions in respect of his health and welfare. Please see here for the judgment.

The Public Guardian v Andrew Riddle (Nos 1 and 2) [2020] EWCOP 41, Senior Judge Hilder
Instructed by the Public Guardian in a legally and procedurally complex case involving 40 individuals where the court had to consider the ability of a non-solicitor professional deputy to charge fees at solicitor rates. Guidance was provided regarding the circumstances in which solicitor rates would apply, how VAT liability should be addressed, and how authority for Independent Visitor costs should be sought. In every case, the court refused the applications of Mr Riddle for authorisation to charge fees at solicitor rates, refused his applications for relief from liability for past charging, and refused his subsequent application for a costs order against the Public Guardian. Please see here for the substantive judgment, and here for the costs judgment.

Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37, Hayden J
Instructed by the Official Solicitor (in her capacity as Advocate to the Court) to assist in the complex moral, ethical and legal issues the case presented. The court was asked to determine whether a young Palestinian man, WA, had capacity to make decisions about his nutrition and hydration and, if he lacked capacity, what would be in his best interests. The factual matrix, including his reasons for wanting to die (which related to a dispute with the Home Office regarding his age) and the decision regarding his capacity was exceptionally complex. The court concluded, in what was described as a “challenging exercise” that WA lacked capacity to make decisions about his nutrition and hydration, but that it was not in his best interests for forced naso-gastric feeding to be carried out without his agreement due (in particular) to his past history of abuse and torture. Read more about the case on our UK Medical Decision Law Blog. Please see here for the judgment.

TH (Property and Affairs Deputy) v PB (by her litigation friend, CR) [2020], Russell J
Instructed to represent PB (by her litigation friend) in an application brought by a professional deputy who sought to withhold PB’s decree absolute and order that PB return to the UK (from Jamaica) having travelled on the premise of getting married. The issues for final hearing were (i) PB’s capacity to make decisions regarding finances, make a Will/ revoke her existing Will, and to marry, and (ii) PB’s application to remove the deputy. The court agreed that the expert evidence was insufficient, held that PB was capacitous in all areas save for finances, and appointed a new deputy due to PB’s breakdown in the relationship with the existing deputy.

Cornwall Council v NP [2020] EWCOP 44, DJ Taylor
Instructed by NP’s wife in a case where the Court of Protection concluded that it was in the best interests of NP, a man with neurological sequelae of herpesviral encephalitis and personality change, to have a trial return home to live with his wife. In reaching its decision, the court took account of the risks in such a trial, the reality that there would be no option of a return home without a trial, and Article 19 of the UN Convention on the Rights of Persons with Disabilities 2006. Please see here for the judgment.

A Healthcare and B NHS Trust v CC (by his litigation friend, the Official Solicitor) [2020] EWHC 574 (Fam), Lieven J
Jointly instructed by the applicants in a complex case concerning CC, who had diagnoses of psychotic depression and a mixed personality disorder who was detained under section 3 MHA 1983. CC was also deaf, had type 1 diabetes, and suffered complex physical health issues caused by chronically poor compliance with the required diabetic treatment, including renal failure. The court had to consider the interplay between the MHA 1983 and the MCA 2005 and determine whether, and if so, how dialysis could and should be lawfully given due to CC’s refusal. CC would die within 6 weeks without the necessary treatment. The court agreed with the primary argument that CC’s refusal of dialysis was a manifestation of his mental disorder and that he could be treated under section 63 MHA 1983. Please see here for the judgment.

A Local Health Board v JK [2019] EWHC 67 (Fam), Lieven J 
Instructed by a Local Health Board in an application relating to the future medical treatment of JK. JK was a prisoner on remand for the alleged murder of a family member. He was a restricted patient under section 48 MHA 1983. He was refusing to eat and wished to die. The case was described by the court as “very difficult” due to the overlapping legal frameworks of the MCA 2005, the MHA 1983 and the inherent jurisdiction of the High Court. The court determined that the proposed treatment (which included force-feeding by way of nasogastric tube) was treatment within the scope of section 63 MHA 1983 as JK’s refusal to eat was a manifestation or symptom of his autistic spectrum disorder. JK’s consent was not therefore required for the medical treatment; which included force feeding. Emma was led by Michael Mylonas KC. Please see here for the Judgment.

Hounslow Clinical Commissioning Group v RW & Ors [2019] EWCOP12, Hayden J
Instructed by the Official Solicitor (as litigation friend) on behalf of RW in an application concerning RW’s palliative care plan. Such issues had been considered by Parker J and the Court of Appeal where it had been determined (and upheld) that it was not in RW’s best interests to continue to receive CANH via a naso-gastric tube, but that he should receive end of life care at home. The CCG applied to court due to concerns regarding the management of RW’s condition at home. This included the unusual circumstance of RW’s necrotic leg (which had self-detached), and the fact that RW had survived 10 months following the original decision. The court held that although RW would have wished to die at home, that his son, PT, would continue to give him food and water which presented a real risk of asphyxiation and that RW required pain relief which was not accepted by PT. Hayden J endorsed the CCG’s plan, as supported by the Official Solicitor, for RW to die peacefully either in hospital or a hospice. Please see here for the Judgment and here for media coverage.

Northampton General Hospital NHS Trust v DD & St Andrews Hospital [2019], Williams J (interim), and Knowles J (final)
Instructed by St Andrews Hospital in an application relating to serious medical treatment including the withdrawal of CANH. DD had required repeated admissions to NGH as a consequence of pulling out her PEG tube which necessitated IV fluids under restraint and for the PEG to be resited under general anaesthesia. There was evidence that DD wanted her PEG tube to remain in place and that she was able to sing and enjoyed listening to music. That had to balanced with her overall poor quality of life and prognosis and the view of her carers and family. Orders made. Please see here for media coverage.

Cardiff & Vale University Health Board v MW [2019], Mostyn J
Instructed by the Health Board in an application relating to serious medical treatment in the form of cataract surgery, vitrectomy, and endolaser treatment of the retina under general anaesthetic in an attempt to control diabetic retinopathy to save MW’s sight. MW had a diagnosis of chronic delusional disorder (that she was pregnant) and diabetes. A manifestation of her delusion was that medication to treat her diabetes would harm her unborn child. A further complication was that MW did not speak English. The case also required consideration of the overlap between the MCA 2005 and the MHA 1983. Orders made.

SS (by her litigation friend, JC) v NHS Leeds CCG and A Care Home [2018] EWCOP 40, Newton J 
Instructed by the CCG in an application relating to serious medical treatment in the form of the withdrawal of CANH. SS became ill during pregnancy and following an emergency caesarean section suffered a cardiac arrest and sustained severe hypoxic brain damage. She was left unconscious and unresponsive and subsequent SMART assessments concluded that she was in a permanent vegetative state despite reports of her laughing, crying and smiling. Cultural and religious issues, the consultation process with family members outside the jurisdiction, and the repatriation of a body required consideration in addition to complex medical issues. Orders made. Please see here for the judgment.

The Public Guardian v Imre Stalter [2018] EWCOP 27, Williams J
Instructed by the Public Guardian in an application for an order for the committal of the respondent to prison for contempt of court due to breaches of a transparency order by disclosing confidential information about ‘P’ arising from an earlier application made pursuant to section 22(4)(b) MCA 2005. The court made 25 findings of contempt. On the basis that the respondent confirmed that he would now abide by the transparency order, the court held that the purpose of the committal had been achieved. Please see here for the judgment.

DS (by his litigation friend, the London Borough of Brent) v MH [2018]
Instructed to advise the claimant (‘DS’) by his P & A deputy, the London Borough of Brent, regarding a number of complex matters arising from a Will purportedly executed by DS appointing the defendant as sole executor and beneficiary of his estate. DS was paraplegic and had diagnoses of cerebral encephalomalacia and dementia. Multi-faceted case where advice was required as to (i) revocation of the Will on the grounds of undue influence, (ii) invalidity due to DS lacking capacity at the date of execution (iii) revocation due to findings made (in parallel chancery proceedings) regarding the defendant.

Imperial College Health NHS Trust and West London Mental Health Trust v CW (by her litigation friend, the Official Solicitor) [2018], Parker J
Instructed by the Official Solicitor (as litigation friend) on behalf of CW in an application relating to serious medical treatment in the form of obstetric care (caesarean section). CW had a diagnosis of schizophrenia, emotionally unstable personality disorder and was 39 weeks pregnant. Oral evidence was heard from the consultant psychiatrist and consultant obstetrician regarding CW’s capacity to make decisions regarding her labour and delivery, and why a decision to compel CW to undergo surgery (who would otherwise wish to have a natural birth) was the least restrictive and in CW’s best interests due to the serious interference with her human rights.

LM v JDE (by his litigation friend, the Official Solicitor) [2018], Francis J
Instructed by the Official Solicitor (as litigation friend) on behalf of JDE for the case management of an application brought by JDE’s P & A deputy for declarations as to whether JDE had capacity to marry, make a Will, and enter into an ante-nuptial agreement. JDE had a number of disabilities, including an ABI as a consequence of being poisoned with insulin when he was a child. The case management addressed the necessity of expert evidence, but also for the expert to address whether JDE should be informed of the extent of his multi-million compensation award.

In the matter of AM: The Public Guardian v SM [1] & RM [2] [2018], DJ Beckley
Instructed by the Public Guardian in an application for the court to determine whether AM was habitually resident in England and Wales (or Gibraltar) and if not, whether the powers under two LPAs had come to an end and whether the court should exercise its functions in relation to AM’s property in England and Wales under schedule 3 MCA 2005. The case involved complex disclosure issues and discussions with the Government of Gibraltar. The attorneys chose to disclaim at the final hearing and a panel deputy was appointed to manage AM’s property which remained in the UK.

In the matter of GH: EG v CR [1] & The Public Guardian [2] [2018], HHJ Cronin
Instructed by the Public Guardian in an application pursuant to section 22(2)(b) MCA 2005 regarding GH to determine (i) whether GH lacked capacity to revoke LPAs in 2017 (executed in 2015), (ii) whether LPAs executed in 2016 should now be revoked, (iii) if all LPAs were revoked, whether a deputy should be appointed. Submitted there was ample evidence that EG was not acting in GH’s best interests and that the continuing hostility between EG and CR was likely to impede the proper administration of GH’s estate which would be avoided by panel deputyship. Orders made.

MB [2017] EWCOP B27, HHJ Parry
Instructed on behalf of MB by his professional litigation friend in a case of fluctuating capacity where a number of expert psychiatrists were instructed to determine whether the mental capacity qualifying requirement was met (per schedule 1A MCA 2005). The ultimate consensus of the medical experts was that MB had capacity and the standard authorisation was terminated. Please see here for the decision.

Re Bristol NHS Trust v AB [2016] 1 EWCOP 67, Baker J
Instructed by AB’s partner in an application relating to serious medical treatment regarding AB’s capacity to make decisions about tissue biopsy, excision of a breast lump and mastectomy in circumstances where AB was highly resistant to surgery. Determined that it was in AB’s best interests to be given general anaesthetic and for a biopsy to be undertaken, and in the event of malignancy to undergo surgery (axillary lymph node clearance and mastectomy) and receive post-operative care.

Re AH [2016] EWCOP 9, Senior Judge Lush
Instructed by the Public Guardian in an application for an order under section 22(4)(b) MCA 2005 to revoke and cancel the registration of a property and financial affairs LPA, an order directing that a panel deputy be invited to act, and an order directing the panel deputy to investigate the previous management of P’s finances and restore them to their correct level. A Local Authority was also involved through an ongoing safeguarding inquiry pursuant to section 42 of the Care Act 2014 in relation to potential financial abuse. The court was satisfied that the attorney had behaved in a way that contravened his authority and described his management of P’s property and financial affairs as a “litany” of failings. The applications were granted. Please see here for the decision.

Re DWA [2015] EWCOP 72, Senior Judge Lush
Instructed by the Public Guardian in response to an application by one of three attorneys for reconsideration of an order revoking an LPA for property and financial affairs. The original application was made by the Public Guardian for an order under section 22(4)(b) MCA 2005 for the partial revocation and cancellation of the registration of the LPA. After hearing argument the court held that the donor was incapable of revoking the appointment herself and that A had behaved in a way that contravened her authority and was not acting in the donor’s best interests. In particular, the court held that A had breached her fiduciary duty by taking advantage of her position and had obtained a personal benefit, had failed to account satisfactorily for all transactions carried out on the donor’s behalf and contravened the duty to keep her money separate from that of the donor. The court confirmed the order made revoking A’s appointment as an attorney. Please see here for the decision.

Appointments

• Fee-paid Judge of the Court of Protection (South West region) (2023 to date)
• Fee-paid Judge of the First-tier Tribunal (Health, Education and Social Care Chamber) (2021 to date)

Recommendations

Emma is recognised by both Chambers & Partners (Band 1) and the Legal 500 for her expertise in the Court of Protection. Recent editorial includes:

“She is an excellent advocate with an understanding of the complex legal frameworks and practical realities of the challenges facing providers.”
Chambers & Partners

“Her knowledge of the law is encyclopaedic and her practical approach to difficult cases is faultless.”
Chambers & Partners

“Emma is an exceptional advocate.”
Chambers & Partners

“A very robust advocate who misses nothing.”
Chambers & Partners

‘Emma is masterful at case management. A meticulous and reliable barrister, who has an excellent manner with all parties in proceedings’
The Legal 500

“She is always extremely well prepared.”
Chambers & Partners

“She is so meticulous and precise, and her attention to detail is just incredible. She leaves no stone unturned.”
Chambers & Partners

“Firm, fair and articulate with extensive knowledge of the law. She has the ability to distil issues in cases quickly and effectively, and is an exceptional advocate.”
Chambers & Partners

“She is extremely approachable and has the respect of the judges.”
Chambers & Partners

‘She is a tenacious advocate with highly tuned negotiation skills and an immense knowledge of the law.’
The Legal 500

“Her preparation is absolutely meticulous and her attention to detail is like no other.”
Chambers & Partners

‘Is tenacious, detailed, thorough, confident, an exceptional advocate and argues a point well and, if required, fiercely. Whenever I instruct her I have complete confidence that the case will be handled exceptionally.’
The Legal 500

“She is fierce when she needs to be and her knowledge of the legal frameworks used in the COP is encyclopaedic. She’s also very responsive and brilliant with clients.”
Chambers & Partners

“She’s technically brilliant and her preparation and the amount of work she puts in is phenomenal.”
Chambers & Partners

“A very knowledgeable and experienced Court of Protection practitioner. Her advocacy is excellent and she has a great ability to cut through complex issues to achieve the best outcome for her clients.”
Chambers & Partners

Publications

• Medical Treatment: Decisions and the Law, Bloomsbury Professional, Fourth Ed., 2022.
  Emma co-authored chapter six: Procedure – Going to Court and chapter thirteen: Feeding 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.

Articles

• Emma has drafted commentaries for the Medical Law Reports for a number of years; most recently having reported upon the case of Wessex Fertility Limited & Ors [2024] EWHC 587 (Fam)
• Emma was featured in the 20^th Anniversary Commemorative of the Human Rights Lawyers Association (2023) which provided “insights from distinguished lawyers and human rights advocates”
• Emma has written articles for The Lawyer, Local Government Lawyer, Public Law Today and has provided practical guidance which has been used in practitioner training sessions, including 360 Degrees Training Ltd (for example, regarding who can consent to a deprivation of liberty for children and young persons)
• Emma has reported on a number of Court of Protection authorities which have been published by Community Care Inform

Seminars

• Emma regularly provides bespoke training to solicitors and professional clients; particularly in relation to NHS and Local Authority duties, with a focus on mental health, mental capacity, education and commissioning. Emma is also regularly invited to speak at larger conferences in her specialist areas, recently speaking at TL4 & ConTrA Private Client Summer School in Cambridge University