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Nicola Kohn
Year of call: 2012
"Superb technical knowledge, authoritative, very responsive. An excellent advocate who is always in control and is respected by the judiciary."
The Legal 500 2023
Nicola’s practice is people focused. It spans public and human rights law and Court of Protection work and extends to common law and regulatory and disciplinary law. She is recommended for both Administrative and Public Law (The Legal 500 2022) and for Court of Protection and Community Care work (The Legal 500 2022 and Chambers & Partners 2022). She has been appointed to the Treasury Panel of Junior Counsel (B Panel) and the Equality and Human Rights Commission Panel of Counsel (C Panel).
She has been involved in some landmark cases of the last few years: JT v FTT [2018] EWCA Civ 1735 which overturned the same-roof rule bar on criminal injury compensation and Tavistock v Bell [2021] EWCA Civ 1363, the challenge to the referral of trans young people under 18 for prescription of puberty blockers.
Nicola has appeared as sole and junior counsel in the Court of Appeal, the Court of Protection, the County Court, the High Court, and various disciplinary tribunals. She will shortly be appearing (led by Jenni Richards KC) in the Supreme Court.
Prior to coming to the Bar, Nicola spent eleven years as a political news journalist at the BBC where she worked as a programme editor on the BBC1 Politics Show and Radio Four’s Today, and as a senior producer on Newsnight.
Areas of expertise
Civil Liberties and Human Rights
Nicola acts for both claimants and defendants, individuals and government departments. She has a particular interest in matters involving the conflict of culture and ideas.
She has the benefit of Developed Vetting and is able to act in cases involving matters of national security.
Cases of note:
- Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363 - Junior counsel to the Tavistock in the Divisional Court and the Court of Appeal (led by Fenella Morris K.C.). A landmark case on the scope of Gillick competence in the context of trans youngsters and their access to puberty-blocking treatment.
- R. (on the application of Maguire) v HM Senior Coroner for Blackpool and Fylde - Junior counsel to the appellant, Muriel Maguire, mother of the deceased, Jackie Maguire, in the landmark case considering the scope of Article 2 in inquests (led by Victoria Butler-Cole K.C. and Jenni Richards K.C). To be heard before the Supreme Court in November 2022.
- R (Noorzai) v Secretary of State for Defence - Junior counsel for the MOD, led by Lisa Giovannetti K.C. in the judicial review concerning allegations of breaches of Article 2 and Article 3 (both substantive and procedural) arising out of operations carried out by British forces in Afghanistan in 2012.
- R. (on the application of AB) v Chief Constable of Hampshire - Junior counsel for AB in a challenge to the failure to provide an intermediary to a young man with learning disabilities who required a police interview to report allegations of a sexual assault. Led by Paul Bowen K.C
Court of Protection: Welfare, Property and Affairs
Nicola has acted in well over a hundred cases in the Court of Protection where she is regularly instructed by the Official Solicitor, health bodies, local authorities and individuals. She has experience of acting in complex fact-finding cases, including the cross-examination of vulnerable witnesses and the use of a court intermediary, deprivations of liberty in the Court of Protection and under the Inherent Jurisdiction of the High Court. She also acts in a growing number of serious medical treatment cases, including those involving end-of-life decision-making. She has a particular interest in cases concerning eating disorders.
Cases of note:
- Re G (Court of Protection: Injunction) [2022] EWCOP 25 - As sole counsel in the Court of Appeal, acting for the first of three appellants in an appeal against an injunction granted by the Vice President to restrict a mother, father and grandmother’s access to the daughter pending her move from a high dependency unit of a hospital for a care home. Nicola was instructed by the mother.
- MC v A CCG - Before the Vice President, Mr Justice Hayden, in an appeal considering the evidence required by the court to make determinations on best interests in the context of Covid-19 vaccination opposed by P’s parents. Instructed by the Official Solicitor.
- PH v Brighton and Hove City Council - Decision of the Senior Judge of the Court of Protection, HHJ Hilder, on an application to set disapply the anonymity provisions usually contained in a Court of Protection transparency order so as to name Tony Hickmott, a man detained under the Mental Health Act 1983 for over 20 years. Nicola has acted for the hospital throughout proceedings aimed at enabling his discharge from hospital into a community home of his own.
- Tower Hamlets LBC v A [2020] EWCOP 21 before HHJ Hilder - A contested hearing on capacity and best interests in the context of a woman with alcohol-related dementia. The court held that in a case concerning an individual's capacity to determine her residence where she lacked capacity to determine her care, the local authority had wrongly conflated capacity to decide residence and capacity to decide care. Although the two overlapped, they were individual domains of capacity, her ability to make a capacitous decision about care was not relevant to making a decision about residence. Instructed by the local authority.
- Clinical Commissioning Group v DC [2022 EWCOP2] - When finding that it was in the best interests of a person lacking capacity to receive a Covid-19 vaccine, albeit with some caveats, the Court of Protection commented on the unacceptable delay between identification of the person's need for the vaccine and the matter reaching court. The court stated that once it became clear that there was a dispute between clinicians and family on an urgent matter related to important treatment of a mentally incapacitous adult, an application to the court should be brought, and determined, with urgency. Instructed by the Official Solicitor.
- Lincolnshire CC v AB [2019] EWCOP 43 - Before Keehan J considering the scope of best interests in the context of access to sex workers and whether assistance provided by a care worker might contravene ss.39, 42 and 53A of the Sexual Offences Act 2003. Nicola acted for the successful local authority.
- Manchester City Council Legal Services v LC [2018] EWHC 2849 (Fam) - A decision by Hayden J concerning capacity to make decisions on contact in the context of a young woman with autism and learning disabilities who was assessed as having capacity to make decisions on sex and wished to engage in sexual relations with multiple partners. Instructed by the Official Solicitor.
Medical Treatment Cases
Cases of note:
- A Mental Health NHS Trust v BG - Decision of Cohen J determining it was in the best interests of a 19 year old woman with severe mental health difficulties and a form of anorexia nervosa to permit the cessation of artificial nutrition and hydration in accordance with her wishes. Instructed for the applicant Trust.
- PW (Jehovah's Witness: Validity of Advance Decision), Re Court of Protection [2021] EWCOP 52 22 Sep 2021 - Decision of Poole J to grant a declaration that a blood transfusion would be in P’s best interests in circumstances where she had a 20 year old advance decision refusing consent to blood confusion but had subsequently done things inconsistent with the decision being fixed – s.25(2)(c) Mental Capacity Act 2005. Nicola acted for the applicant trust in the successful out of hours emergency application which is one of very few reported cases on advance decisions.
- AB v CD [2021] EWHC 741 (Fam) - Following on from the decision in Bell v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin), [2021] P.T.S.R. 593, [2020] 12 WLUK 4, Lieven J held that the parents of a 15-year-old who wished to continue her hormone treatment to suppress puberty retained the parental right to consent to that treatment whether or not she was Gillick competent to make the decision.
- Cambridge University Hospitals NHS Foundation Trust v Mother [2021] EWHC 126 (Fam) - Decision of Holman J determining that it was in the best interests of a 7 year old with a brain tumour to undergo treatment by way of radiotherapy. The tumour had returned for the third time: the child’s mother opposed further treatment given the distress it caused and the 50% chance of failure it involved. Nicola acted for the mother.
- United Lincolnshire Hospitals NHS Foundation Trust v Q [2020] EWCOP 27 - Decision of Gwynneth Knowles J concerning a 57-year-old woman who lacked capacity to make decisions as to her dental treatment. It was in her best interests to undergo dental surgery and to have covertly-administered sedation for her transfer to hospital to prevent her from becoming anxious. Instructed by the applicant trust.
- Tafida Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2531 - Decision by MacDonald J concerning a hospital application to withdraw treatment from a five year old girl who had suffered a cranial haemorrhage. Led by Vikram Sachdeva KC, for the successful litigation friend on Tafida’s behalf in the judicial review of the Trust’s decision not to permit her to be transferred to a hospital in Italy for further life-sustaining treatment.
Community Care and Mental Health
Cases of note:
- Cumbria, Northumberland Tyne and Wear NHS Foundation Trust v EG [2021] EWHC 2990 (Fam) - Following the Supreme Court decision in Secretary of State for Justice v MM [2018] UKSC 60, [2019] A.C. 712, [2018] 11 WLUK 450 that a restricted patient could not be discharged from hospital under the Mental Health Act 1983 on conditions that amounted to a deprivation of liberty, the court used the Human Rights Act 1998 s.3 to interpret s.72(1)(b)(i) of the 1983 Act so as to allow the detention of a restricted patient in a community setting under s.17(3). It was possible to read "liable to be detained" in s.72(1)(b)(i) to mean liable in law to be detained for treatment, even where that treatment was being provided in the community, so long as it could lawfully be provided in hospital.
Regulatory
Nicola has a growing regulatory practice. She has been instructed in cases for a number of healthcare regulators – the GMC, the GCC, the HCPC – as well as for the SRA.
Cases of note:
- Goodchild-Simpson v General Medical Council [2020] EWHC 271 (Admin)
- Rowe v Health and Care Professions Council [2019] EWHC 695 (Admin) - The conduct and competence panel of the health and care professions tribunal service had been correct to find that, on the evidence, a social worker had been in a sexual relationship with the mother of a child being placed into local authority care and to strike him off. Any other decision would have been perverse.
Recommendations
- “She is an impressive court advocate, who is naturally very quick on her feet." The Legal 500 2022
- "She leaves no stone unturned, and judges really respond to her." "She is very thorough, knowledgeable and particularly sensitive to her clients' needs. She's also very easy to get along with." Chambers and Partners 2022
- "Superb technical knowledge, authoritative, very responsive. An excellent advocate who is always in control and is respected by the judiciary." The Legal 500 2022
- "She leaves no stone unturned, and judges really respond to her." "She is very thorough, knowledgeable and particularly sensitive to her clients' needs. She's also very easy to get along with." Chambers and Partners 2022
- "Nicola is very bright, good with clients, down to earth and actively involved in the management of cases."
- "She has a knack for getting a good result in difficult cases. She's extremely thorough, knows mental capacity law inside out and is a good advocate."
- “She is absolutely excellent – very clear and knows her subject extremely well.” Chambers and Partners 2021
- “Goes above and beyond for her clients. She is also a charming and skilled advocate, with real courtroom gravitas.” The Legal 500 2021