Year Of CallYear of call: 2017
Court of Protection
Health and Welfare
Capacity and Best Interests
Deprivation of Liberty
Susan McKendry is an experienced Court of Protection practitioner and advocate with a proven track record in both the private and public sector. After 22 years practising as a solicitor Susan transferred to the Bar. Following her degree in English and History at Northumbria University in 1990, she qualified as a solicitor after passing the Common Professional Examination, Law Society’s Final examinations and completing her training contract with Eversheds in Newcastle.
Susan specialises in Court of Protection, community care and adult social care work. She is a committee member of the Court of Protection Bar Association (CPBA).
Susan is experienced in representing clients who have Dementia, learning disabilities, mental health issues, behavioural or communication issues and those on the autistic spectrum.
Having worked for the Official Solicitor, Susan has extensive knowledge of serious medical treatment cases, including end of life decisions. In these sensitive matters she has acted for both patients and their families.
Susan has represented local authorities and been involved in many transitional care cases concerning children.
Susan has been recognised nationally in both Chambers & Partners and the Legal 500:
Susan McKendry is championed for having “a lot of experience supporting the most vulnerable members of society.” She is one of the most recognisable names in the field of health and welfare work, having practised since the Court’s inception. Peers describe her style as “very, very thorough. She has the ability to identify problems on the horizon and box them off early”.
“Susan McKendry is singled out as an extremely impressive Court of Protection health and welfare practitioner by clients and peers alike. One source comments that she is “approachable and professional, and works tirelessly in her role as litigation friend, and is a highly effective communicator”.
Susan is frequently instructed to chair multi disciplinary round table meetings and advise on s.21A challenges, urgent medical treatment disputes and adult care planning issues. She has been a regular provider of training and continuing professional development courses.
Susan’s reported cases include:
PCT v P & A Local Authority (2009) COPLR Con Vol 956
In one of the very first cases issued in the newly constituted CoP, Hedley J determined:
(1) the issue of P’s capacity in relation to his medical treatment for uncontrollable epilepsy, contact with his adoptive mother and capacity to conduct litigation;
(2) P’s best interests in relation to where he should live and his contact which posed “an essential conflict between representatives of the State who owe statutory duties to P on the one hand, and the view of his carer of 18 plus years standing in the other. Further more it raises issues of significance in relation both to Articles 8 and 5 of the European Convention of Human Rights”.
Susan acted for P thorough his litigation friend, the Official Solicitor. P’s legal costs were funded by the Legal Aid Agency. The court ordered that it was in P’s best interests to reside at his supported living placement where he was deprived of his liberty with significant restrictions on his contact. This case stated when it is appropriate for the state to interfere in the private and family lives of incapacitated persons.
Re SK (2012) EWHC 1990 (COP)
Dealing with concurrent Court of Protection and Personal Injury proceedings.
Susan was instructed by the Official Solicitor to represent a patient with 2 acquired brain injuries whose residence, care package, contact and capacity to marry were in dispute.
PC v City of York Council (2013) EWCA Civ 478
The Court of Appeal considered how to apply the 2 stage capacity test and disapproved of a declaration that P lacked capacity to decide to cohabit. This judgment also addressed whether the test for capacity was person or act specific.
Susan was instructed by the Official Solicitor to represent a highly vulnerable lady with significant learning disabilities whose husband, serving a prison sentence for serious sexual offences, was released on licence.
A Local Authority v Mr and Mrs D  EWCOP B34
In proceedings before the Court of Protection claiming damages for unlawful deprivation of liberty (alleged breaches of a party’s rights under Articles 5 and 8 ECHR), Susan represented Mrs D acting by her litigation friend the Official Solicitor. District Judge Mainwaring-Taylor approved a compromise agreement awarding £15,000 in damages (plus costs) to Mrs D for a period of 4 months unlawful detention.
North Yorkshire County Council v MAG (2015) EWCOP 64
When is deprivation of liberty lawful/unlawful and can the CoP explore the local authority’s care plan?
Susan was instructed by the Official Solicitor who acted as litigation friend for a young man with autism, learning disabilities, no verbal communication and cerebral palsy who required support for all his daily living needs. The Council appealed the first instance judge’s decision that it was unlawful to deprive MAG of his liberty in his current placement. Having visited MAG in his flat, the first instance judge had found the placement did not meet MAG’s needs, taking into account the insufficient room to manoeuvre a wheelchair so MAG mobilised on his bottom using his hands and knees causing him physical difficulties and infection. Prior to the Appeal the Council did provide a bespoke placement which met MAG’s needs, including access to a safe garden area.
Leeds Teaching Hospital NHS Trust v JF and CH  EWCOP 32 Cohen J
Lead by Nageena Khalique QC, Susan represented the sister of ‘P’ in this end of life medical treatment case and was successful in obtaining a declaration that it was not lawful to administer morphine and as to what was in P’s best interests regarding ‘ceilings’ of treatment.
This case achieved a good outcome in a challenging and very sensitive end of life serious medical treatment case.
Susan is a contributor to the Court of Protection Practice 2019 by LexisNexis.
Committee Member, Court of Protection Bar Association (CPBA)