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Category Archives: adult social care

Not being allowed to see an expert report

 

I’ve read this case half-a-dozen times now, and I still don’t entirely get it.

 

NCC v AH and DH 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4845.html

 

Dramatis personae

 

NCC is the Local Authority.   (It isn’t a very cryptic disguise of whom they might be)

AH is a woman, who has some mental health problems and for a time was considered to lack capacity and be a person at risk from :-

 

DH her husband.

 

The application

(a) an application by DH for disclosure to him of any reports and/or letters by Dr. McInerney and the report of Dr. Khouja dated 29th July 2011;

(b) an application by AH for disclosure to her of the said reports and of her Social Services records (it being acknowledged by all parties that she would share them with DH); and

(c) applications by AH and DH for their costs, or a proportion thereof, incurred in both sets of proceedings to be paid by the local authority.

These applications arise from a set of proceedings under the Inherent Jurisdiction and a set of proceedings under the Mental Capacity Act in the Court of Protection.  Both seem to have arisen because AH made allegations about her husband’s behaviour towards her which were believed (but which appear to have been more a result of her mental health problems).   NCC considered that AH was a woman that they owed duties towards, as a result of Re Z (Local Authority: Duty) [2005] 1FLR 740, especially at para.19.

 

In my judgment in a case such as this the local authority incurred the following duties:

i) To investigate the position of a vulnerable adult to consider what was her true position and intention;ii) To consider whether she was legally competent to make and carry out her decision and intention;

iii) To consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;

iv) To consider whether she was legally competent to make and carry out her decision andintention;

v) To consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;

vi) In the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;

vii) In the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;

viii) Where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;

ix) In very exceptional circumstances, to invoke the jurisdiction of the court under Section 222 of the 1972 Act

 

 

A psychiatric report was directed in those proceedings, from a Dr McInerney. It appears that within the proceedings, the Official Solicitor (on behalf of AH) and Local Authority, took the view that the Court should take the unusual step of not disclosing that report to DH, on the basis that there were things AH had said about his behaviour which might put her at risk if DH were to see it.  [That’s quite unusual, we’ll come back to it later]

The Official Solicitor and LA also told the Court that they did not rely on Dr McInerney’s report and wanted a second opinion, from a Dr Khouja.  DH  of course, had not seen it, so it was rather hard for him to say whether he did seek to rely on it, or whether a second opinion was necessary.  (One can make an informed guess that if it said things that the LA and OS agreed with, they wouldn’t have been asking for a second opinion, so DH would probably have agreed with what was said)

[It is also worth noting that DH had to pay a share of the costs of Dr McInerney’s report, although he never got to see it or know what it said. He didn’t have to pay a share of the costs of Dr Khouja’s report]

Dr Khouja was directed to file two reports, one on capacity (which DH DID get to see) and one”considering the recent Social Services assessment of AH, and he may also include in that supplementary report, any matter or opinion which he would wish to report upon, but he is of the view should be withheld from DH pending judicial determination of any disclosure issues.”  which DH didn’t get to see.

Dr. Khouja concluded that AH did not lack capacity in respect of any of the matters which he had been instructed to assess. This led to Bodey J’s order of 11th November 2011. By consent, NCC were given permission to withdraw both sets of proceedings. The Official Solicitor was discharged as litigation friend to AH although he remained as an interested party for the purposes of the disclosure application.

 

So, the proceedings were withdrawn, because AH had capacity to make her own decisions about whether she wanted to be with DH or not, and it wasn’t the role of the State to intervene on her behalf.

DH, having gone through all of this and having had to pay for all of his own legal costs, was understandably unhappy, and wanted to make a series of complaints about what had happened.  In order to inform his complaints and no doubt to bolster them, he wanted to see both of the expert reports that had been withheld from him. And he was also asking that some of his costs be paid.

 

Law on non-disclosure

 

The law is that generally, a document filed at Court should be seen by all parties, and the burden is on the party seeking non-disclosure to establish why that general rule should not be followed.

The substantive law is set out in the House of Lords case of Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 [1995] 2 FLR 687. The test is:

“(1) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party…

(2) … the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

(3) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

(4) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

(5) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

[Although Re D here deals with a child, the principles are much the same. The argument was that disclosing to DH an expert report in which AH was presumably making allegations to the expert about abuse might put her at risk.  The counter argument to that is that as a consequence of these proceedings, DH might have to live apart from his wife as a result of such allegations but they were being made in a way that concealed from him what they were.  ]

Moylan J’s judgment does not really deal with this, although to be fair, the decision to not disclose the documents at that earlier stage had already been taken and presumably there is a judgment weighing up those factors at that time.  Instead, he looks at the duty of disclosure being that the documents are disclosed in order to allow a person to participate effectively in the hearing  –  in order to have a fair trial.

  1. Turning now to the legal framework, the expert evidence in this case was obtained for the purposes of these proceedings and pursuant to court orders. The court has power to provide to whom such evidence is to be disclosed and to whom it is not to be disclosed, including a party to the proceedings: see, for example, Re B (Disclosure to Other Parties) [2001] 2 FLR 1017.
  2. The experts overriding duty is to the court. Both proceedings in this case were heard in private. The reports are, therefore, confidential to the court, as described by Sir Nicholas Wall, President, in A County Council v. SB, MA & AA [2011] 1FLR 651. At para.34, he said:

    “In my judgment, ‘confidentiality’ in this context means that the information contained in the papers filed with the court for the purposes of the proceedings is confidential to the court. It is for this reason that, with very few exceptions, the court papers cannot be disclosed to people who are not parties to the proceedings without the court’s permission; and publication outside the proceedings of information relating to the proceedings is in most cases a contempt of court unless permission for it has first been given by the court”.

  3. As a result of being confidential to the court, and to the proceedings, a report cannot be used by any party for any collateral purpose or purpose unconnected with the proceedings without permission from the court. There are a significant number of cases which address the factors which the court will take into account when deciding whether to give such permission.
    1. Turning now to disclosure, the general rule is that a party is entitled to the disclosure of all evidence which any party proposes to adduce to the court. As Lord Dyson said in Al Rawi & Ors. v. The Security Service & Ors. (Justice & Ors. Intervening) [2012] 1 AC 531, at para.12:
      1. “Trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance”.
    2. It can be seen from this passage that disclosure is made for the purposes of the proceedings and to ensure that any trial is fair.

 

But of course we know that during the proceedings, those documents were kept from DH. There were allegations being made about him that he was kept in the dark about.  When it emerged that AH had capacity, and wanted to remain in a relationship with DH, the proceedings were withdrawn.

Should he now be entitled to see those reports?   (after all, they are about AH, and she has capacity to say whether she wants him to have them – and she does)

  1. Given the determination of the substantive proceedings, I can identify no grounds on which disclosure of the reports should be ordered. They were prepared for the purposes of the proceedings. They were not disclosed to DH and AH pursuant to orders made during the course of those proceedings. There is no freestanding entitlement to disclosure once proceedings have concluded. Disclosure is part of the process by which the court ensures that a fair trial is effected. It is self-evident that, following the determination of proceedings, disclosure of evidence is no longer required for the purposes of the proceedings or in order to effect a fair trial.
  2. It is self-evident in this case that disclosure can no longer be sought for the purposes referred to in DH’s Solicitor’s letter of 18th March 2010, namely to enable the evidence to be tested within the proceedings. Rather, disclosure is sought by DH and AH for collateral purposes, namely to challenge, what they refer to as, the “toxic” comments in the reports. This, they contend, is necessary to enable them to clear their names. They also want to report Dr. McInerney to the GMC, and possibly to take libel proceedings.
  3. None of these appear to me to provide, in the circumstances of this case, any ground for ordering disclosure. I cannot envisage any court giving permission to DH and/or AH to use the reports for the purposes of any such step. Now that the proceedings are at an end, there is no justification in seeking to challenge the contents of reports prepared for, and only for, the proceedings. I can, therefore, see no basis on which DH and/or AH could now successfully seek to challenge the orders made during the course of the proceedings.

 

That seems to me to be a rather curious way of looking at things. It ought not to matter what DH wants to do with the documents, and whether you think he ought not to do it. This was a report about AH, and we now know that she has capacity to decide for herself whether she wants it to remain confidential or whether she wants her husband to see it, and she does.  I can see that the Court approach is to draw a line under the proceedings and for everyone to move on and forget the whole thing, but once AH has capacity, she is no longer a vulnerable person who needs the protection of the Court. The decision not to disclose the reports at the time were taken in the context that it was believed that she lacked capacity and needed that protection.

The next bit is even more suprising.

Finally, given the clear risk of satellite litigation, I propose to order that neither the Official Solicitor nor the solicitors instructed by the Official Solicitor should disclose the non-disclosed documents or the Social Services records, insofar as they have them, to AH. If this were to happen, it would undermine the effect of my judgment and proposed order.

 

Well, it makes sense. The Court order could easily be circumvented by a subject access request under the Data Protection Act 1998, for disclosure of the records that are held about AH and DH.  This is, however, the Court making an order that a Local Authority need not comply with their statutory obligations under primary legislation if a request were made.  Not only that, it is an order about primary legislation where the first port of call in a dispute or challenge is not actually the Court but to the Information Commissioner.  Does the Court even have jurisdiction to do this?

 

[Well, of course the answer to that is going to be that the original application was under the inherent jurisdiction, and we can all chant the answer “the powers are theoretically limitless”]

 

I can’t actually establish under the DPA what section you would use to refuse a section 7 request.  It doesn’t fit any of the non-disclosure provisions in Schedule 7 of the Act.

 

My best argument would be that in making that order, the Court has effectively determined (though without giving a judgment as to why) that this is satisfied

The Data Protection (Subject Access Modification) (Social Work) Order

2000:

this provides that personal data held for the purposes of social work

are exempt from the subject access provisions, where the disclosure to the

data subject would be likely to prejudice the carrying out of social work, by

causing serious harm to the physical or mental health, or condition, of the

data subject, or another person.

 

For law geeks, there’s a really obvious way of getting the reports, but obviously it would be wrong of me to spell it out here.

 

You won’t be surprised, having read the rest of this, that Moylan J didn’t allow the application by DH for costs.

 

  1. Turning next to the issue of costs, I am satisfied on the evidence that AH was given no assurance that her costs prior to the appointment of the Official Solicitor would be paid. I accept the evidence of Ms. Hardman and Mrs. Ord to that effect, which is supported by the records produced from AH’s own solicitors. Additionally, AH herself says that she was not in a fit state at the relevant time and was not taking things in.
  2. Secondly, in respect of proceedings in the Court of Protection, I can identify no justification for departing from the general rule that there should be no order as to costs. There is nothing in NCC’s conduct which would justify my departing from that rule. The proceedings have concluded without any determination. I am satisfied that NCC have acted properly throughout, in accordance with their obligations. There is no point at which they should have decided, as submitted by DH and AH, to discontinue the proceedings earlier than they did, namely following the receipt of Dr. Khouja’s report.
  3. I am also not persuaded that I should make any separate order in respect of Dr. Khouja’s costs. These were part of the costs of the proceedings to which the general rule applies.
  4. Thirdly, in respect of the costs of the proceedings under the inherent jurisdiction, I am also persuaded that NCC acted properly throughout in bringing the proceedings, in that, in so doing, they were acting in accordance with their obligations in respect of vulnerable adults. As the letter from DH’s solicitor dated 18th March 2010 makes clear, it was accepted that AH had said things to social workers which would lead professionals to have concerns. The letter specifically states that:

    “Our client accepts that the premise of the proceedings is that the local authority believes that his wife’s descriptions of how he has treated her may be true”.

    I can identify no point at which NCC should have decided to discontinue those proceedings earlier than when they did.

 

Thus DH had to pay for legal representation, in order for NCC to go to Court and argue that his wife lacked capacity and needed protecting from him, even though it turned out in the end that she didn’t, and had to pay for a share of an expert report (which probably would have helped his case if he’d seen it) which he wasn’t allowed to see and will never see. The whole of this case was based on allegations which he hasn’t seen and none of which were proved.

 

This one is probably far too legally complex for our friend over at the Telegraph, but it certainly is one that might warrant the “Kafka-esque” label that he routinely affixes to cases.

The Supreme Court ignore my new Act

Having laboured over the drafting of brand new legislation to avoid any disputes about where people live,  http://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/  I am disappointed that the Supreme Court did not take the opportunity to pick up that particular baton and run with it.

 

And if you thought that people were litigating about ordinary residence too much BEFORE, just you wait.

 

The Supreme Court in R (on the application of Cornwall Council) 2015  https://www.supremecourt.uk/cases/docs/uksc-2014-0092-judgment.pdf  were dealing with a tricky scenario.

 

P had been a child, and when he was a child, had been placed in foster care in Wiltshire. This was in 1991.  As part of his care, Wiltshire PLACED him in South Gloucestershire.   When P became an adult, his needs were such that he required accommodation under the National Assistance Act 1948.  His needs are estimated to cost about £80,000 per year and he is likely to need them for the remainder of his life, so the issue of which Local Authority pays is liable to cost millions.

P’s parents, when he was an adult, moved to Cornwall; who also got dragged into this, despite him never having set a foot in Cornwall until 2004 and only then on a short visit to his parents.  We also add into the mix that accommodation was found for P in Somerset.

 

It is real law-exam stuff.  I wrote about how the High Court resolved it here (back in 2012), and I obviously developed some form of mental scarring as a result, because when the Court of Appeal decision came in, I couldn’t even face looking at it.    (I’ve not sold this link, but if you are a masochist, or you are trying to decide whether to quit law forever and just want something to tip you over the edge, here it is  http://suesspiciousminds.com/2012/12/27/as-clear-as-a-bell-if-the-bell-were-made-out-of-mud/

 

[I’ll assume that you rightly skipped that link]

 

The majority opinion of the House of Lords is that where a Local Authority accommodate a young person, and that person then goes on to require adult services, there’s no break in ordinary residence just because they happened to put him in another area.  The LA who started the case off, keeep hold of the responsibility, even though the case moves from being a child case to an adult case, and moves from one Act to another.

 

54. The question therefore arises whether, despite the broad similarity and obvious underlying purpose of these provisions (namely that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it), there is a hiatus in the legislation such that a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to be regarded on reaching that age as ordinarily resident in the area of Y for the purposes of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y.

55. It is highly undesirable that this should be so. It would run counter to the policy discernable in both Acts that the ordinary residence of a person provided with accommodation should not be affected for the purposes of an authority’s responsibilities by the location of that person’s placement. It would also have potentially adverse consequences. For some needy children with particular disabilities the most suitable placement may be outside the boundaries of their local authority, and the people who are cared for in some specialist settings may comefrom all over the country. It would be highly regrettable if those who provide specialist care under the auspices of a local authority were constrained in their willingness to receive children from the area of another authority through considerations of the long term financial burden which would potentially follow.

 

That does make a degree of sense.  Firstly, if a Local Authority caring for P as a child, could remove any burden on caring for him as an adult by placing him in another local authority area, then these vulnerable individuals could become subject to a game of pass the parcel (but where you DON’T want to be holding the parcel when the music stops). Secondly, Local Authorities who had made provisions or had specialist facilities in their area for children could end up receiving a higher number of such children and then having to go on to care for them as adults. And thirdly, Local Authorities might jealously guard their borders, not being willing to accommodate children on behalf  of other Local Authorities who might be trying to shift the burden of responsibility in adulthood.

 

The majority opinion therefore concludes

 

59. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday.

 

[The Supreme Court do not use this guache term, but in a reductive sense, the law on ordinary residence where a Local Authority places a young person in another area and that young person then needs services as an adult is “He who smelt it, dealt it”]

 

But see Lord Wilson’s stirring dissenting opinion, and it is hard not to disagree with his conclusions. What he says in effect is that the Supreme Court majority opinion is deciding the law not on the basis of a legal interpretation or following precedent, but deciding on which outcome has the better public policy implications.  This is all even better if, like me, you choose to imagine that Lord Wilson has the same speaking voice as John Le Mesurier used for Sergeant Wilson.  (“Are you sure that’s wise, sir?”)

 

I believe that this might be my FOURTH Dad's Army illustration on the blog...

I believe that this might be my FOURTH Dad’s Army illustration on the blog…

 

 

 

62. My colleagues consider that, in making his determination under section 32(3) of the National Assistance Act 1948 (“the 1948 Act”) of the place of PH’s ordinary residence on 26 December 2004 for the purpose of section 24(1) of the same Act, the Secretary of State could lawfully have reached only one conclusion. It is, according to them, that on that date, which was the day prior to his 18th birthday, PH was ordinarily resident in a county (Wiltshire):

a) in which in May 1991, ie about 13 years earlier, he had ceased to live upon his removal to live with the foster parents in South Gloucestershire;

b) to which, during the following 13 years, he never returned, not even just to stay overnight;

c) in which in November 1991, ie also about 13 years earlier, his parents had ceased to live upon their removal to live in Cornwall;

d)in which by 1997, ie about seven years earlier, both sets of his grandparents had, in one case because of relocation and in the other because of death, ceased to live; and

e) in which, from 1997 onwards until many years after 26 December 2004, no home remained available, even in principle, for his occupation.

63. Such is a conclusion to which, with great respect to my colleagues, I do not subscribe. It is a conclusion for which no party has contended at any stage of these proceedings. A court should tread cautiously before favouring a solution devised only by itself, particularly where, as here, it has been addressed by an array of excellent counsel instructed by public authorities widely experienced in this area of the law.

 

Whether you agree with Lord Wilson or not, you have it say that to be able to pour so much information into such a condensed and easy to follow two paragraphs is masterful.

 

He goes on

 

 

 

65. I must squarely confront the problem. There appear to be strong reasons of public policy which militate in favour of imposing upon Wiltshire, rather than upon South Gloucestershire, the obligation of making decisions about a suitable placement of PH following his 18th birthday and of funding whatever placement may thereafter be suitable for him from time to time. It would be a heavy financial burden for Wiltshire but its burden in the case of PH would be borne to the same extent by some other local authority in a reverse situation: in other words the burdens should even out. Public policy suggests:

a) that it is desirable that a local authority which has exercised the decision-making power (and has borne the funding burden) in relation to the placement of a mentally incapacitated minor should, in the light of its knowledge of his needs, continue to exercise that power (and bear that burden) following the attainment of his majority; and

b) that it is undesirable that a local authority which is exercising the decision-making power (and bearing the funding burden) in relation to the placement of an incapacitated minor should, while he remains a minor, be able to place him in a suitable facility in the area of another local authority (indeed, in the case of a private placement, without the consent of that local authority), with the result that, following the attainment of his majority, the decision-making power and, in particular, the financial burden should fall upon that other local authority. In the present case, for example, the evidence suggests that Wiltshire’s placement of PH in 1991 with his excellent specialist foster parents did not in any way involve the local authority of South Gloucestershire, which for the following 13 years appears to have played no part in directing or securing his care. Yet, on my analysis, it is South Gloucestershire which should thereafter have begun to exercise the decision-making power and, in particular, to bear the financial burden. The Secretary of State accepts that, of the young people who move from being looked after by local authorities as minors to being provided with accommodation by them as adults, those lacking capacity are only a small proportion. But he explains convincingly that, in the light of their specialised needs, the cost of maintaining them indefinitely is very high. He proceeds to identify real concerns that a few local authorities might therefore be motivated (to use the crude shorthand which, only for convenience, has been deployed in the hearing before this court) to “export” such a minor to the area of another local authority prior to the attainment of his majority; and equally that, were that other local authority to be the administrator of a specialist resource entirely suitable to the needs of a minor, it might nevertheless be motivated to refuse him admission to it for fear of the financial consequences following the attainment of his majority.

 

66. But such is the result which in my view the law, as it stands, clearly compels. I am not a legislator. Nor, with respect, are my colleagues.

 

Whether the case should be decided on law or public policy  (and I agree with Lord Wilson – if the Supreme Court start to decide cases on what it considers to be the best outcome for public policy then we are on a slippery slope), the Supreme Court have not really considered the real public policy outcome here.

 

If Local Authority A and Local Authority B are arguing about which area is responsible for providing care for little Tommy, then at the moment, they fight like cat and dog about meeting those costs for a maximum of 18 years.  Following this decision, the loser of that argument could, if little Tommy is going to require accommodation throughout his adult life, be stuck with those costs for 80-90 years.

Now, using your skill and judgment, do you think that those arguments will as a result become :-

(a) more amicable; or

(b) more contentious

 

 

 

 

 

 

Bodey and DoLs

Mr Justice Bodey, sitting in the High Court dealt with a case involving a 93 year old woman with severe dementia, and had to resolve whether the protective mechanisms that had been put in place by the Local Authority amounted to a deprivation of liberty (or DoLs).  And if so, whether the Court would authorise those.

 

W City Council v Mrs L  2015

http://www.bailii.org/ew/cases/EWCOP/2015/20.html

 

This might have wider implications, because the Court were being asked specifically about two issues :-

 

1. The deprivation was in the woman’s own home, rather than in accommodation provided by the State.

2. The woman herself was not objecting to the restrictions, or kicking against them.

Unusually here, it was the LA who were saying to the Court that their actions amounted to a deprivation of liberty, and the family were saying that it wasn’t.

Here’s what the restrictions amounted to:-

  1. As I have said, Mrs L is 93. She was widowed in 1976 and has lived since about that time, 39 years, in her current home, the upper floor flat in a 2-storey building. She has 4 adult daughters, 3 of whom live in England and one abroad. Her daughter PC is, as I have said, her litigation friend. If I may say so, the family seem to have done extraordinarily well in caring proactively for Mrs L, who was diagnosed with dementia in 2004. Since that time, her condition has deteriorated, and understandably is deteriorating. Her family have adapted her furniture and routines to take account of all her needs. She fell twice in 2013, the first time injuring her hip and requiring an operation. The second time in November 2013 she suffered no injury, but became disorientated and wandered away from her home very unsuitably clothed into the local town. She was returned home by the Police or Social Services. This event led to the involvement of the Local Authority.
  2. At that time, the garden at Mrs L’s home was not enclosed. In the light of Mrs L’s having wandered off, the family arranged for a fence and two gates to be erected, and for the garden to be generally improved. The gates are side by side: one to use on foot, and the other a double gate to admit vehicles, presumably for the benefit of the young couple who live with their children in the ground floor flat. The pedestrian gate latch is of the kind often seen on bridleway gates, having a vertical metal lever on the gate, which is pulled away from the gate post to open the gate, and which springs back to engage with a clip on the gate post in order to re-close the gate. The double gates are secured by a metal throw-over loop, which holds the two central uprights together. The front door of Mrs L’s flat which leads into this garden area is locked with a Yale lock, which Mrs L can and does operate herself. This enables her to have access to her garden as and when she wishes it. All agree that she gets great pleasure from being able to go out and enjoy the garden.
  3. The Local Authority have undertaken assessments of the safety of the above arrangements. They have concluded that whilst neither of the gate latches lock, they are quite stiff and heavy to operate. There was an occasion when Mrs L was observed to open the pedestrian gate when asked to do so. This was before a wedge was added to the gate by Mrs L’s downstairs neighbours (to stop their young children getting out) which has made the gate more difficult to open. The garden is felt by everyone to be sufficiently secure, although with an unavoidable risk that someone might leave the gate open. At night, there are door sensors which switch themselves on in the evening and off in the morning. They would be activated if Mrs L were to leave the property at night, although she has not in fact done so in the 6 months or so since they were installed. An alarm call would automatically be made to one of her daughters, who lives nearby. If that daughter were not available, the call would re-route go to the emergency services. This would enable Mrs L to be guided safely back home.
  4. Mrs L is happy and contented where she lives. A care package is provided for her by the Local Authority’s specialist dementia carers, who visit her 3 times a day. She is orientated within the property, steady on her feet, motivated to engage in simple activities, and has a clear interest in her garden. There is a documented history of her strong sense of belonging in her current home, and of her fierce sense of independence. She displays an acceptable level of mobility. Her immediate environment can be seen to give her significant pleasure and stimulation. She is able to enjoy the company of her cat. All agree it would cause her distress to be moved to residential care. All agree too that the current arrangements of family and Social Services working together are in Mrs L’s best interests and work well.
  5. The facts on which the Local Authority relies in particular for saying that the arrangements amount to a deprivation of Mrs L’s liberty are: (a) that the garden gate is kept shut, thereby preventing or deterring Mrs L from leaving the property unless escorted; (b) that the door sensors are activated at night, so that Mrs L could and would be escorted home if she left; and (c) that there might be circumstances in an emergency, say if the sensors failed to operate at night, when the front door of the flat might have to be locked on its mortice lock, which Mrs L cannot operate (as distinct from the Yale lock, which she can). She would then be confined to her flat. These arrangements are said by the Local Authority to be integral to its care plan for Mrs L, which is overseen by her social worker. The Local Authority thus asserts that it is responsible, as a public body, for a deprivation of Mrs L’s liberty.

 

This is a good illustration of how unsatisfactory things are at present with DoLs.  On those facts, my gut feeling would be that it ISN’T an article 5 deprivation of libery. BUT, given that if you get this wrong, compensation is payable to the person being deprived of their liberty (and at least one Judge has ordered that that is on a daily rate), would I be sure? Or even fairly sure? I can absolutely see why this LA wanted to make the application and have a Judge decide.

 

Mr Justice Bodey sets out the law very well (this would be a good “go-to” judgment for these issues)

 

On the two key issues in the case, Bodey J said that both were relevant factors in weighing up whether the restrictions amounted to a deprivation of liberty, but neither of them were determinative (i.e a person CAN be deprived of liberty in their own home and a person CAN be deprived of their liberty even if they seem perfectly happy about it, but whether or not they ARE being deprived of their liberty depends on the facts of the case)

 

23. ..it is overwhelmingly clear that Mrs L is where she always wanted to be when she was capacitous: and where not only has she not shown or expressed any dissatisfaction with the arrangements, but has demonstrated positively a continuing satisfaction with being in her own home. Further, her home is clearly not a ‘placement’ in the sense of a person being taken or taking herself to some institution or hospital.

  1. The fact of Mrs L referring to, and demonstrating by her demeanour, this continuing contentment in her home is not in issue. It is right that she is of course not capacitated. Otherwise, this case would not be happening. But I do find that she is capable of expressing her wishes and feelings, as is referred to in the documents and shown in such things as for example her choice of clothes, the choice of what she does around the property, and in her going in and out of the garden at will. Although I accept the general need for the caution which Miss Hirst urges me to exercise, this consideration must be relevant in the evaluation of whether Mrs L is being ‘deprived’ of her ‘liberty’ within Article 5.
  2. This case is thus different from one involving institutional accommodation with arrangements designed to confine the person for his or her safety, and where that person, or someone on his or her behalf, is challenging the need for such confinement. At paragraph 38 of Cheshire West Lady Hale spoke about ‘the presence or absence of coercion’ being a relevant consideration. As I have said, the range of criteria to be taken into account includes the type, duration, effects and manner of implementation of the arrangements put in place. The fact that those criteria are prefaced by the words ‘such as’ demonstrates that they are not intended to be exhaustive. It is a question of an overall review of all the particular circumstances of the case.
  3. I observe too that Article 5 refers to everyone having a right to ‘liberty and security of person’ [emphasis added]. Mrs L’s ‘security’ is being achieved by the arrangements put into place as being in her best interests, even though involving restrictions. Such restrictions are not continuous or complete. Mrs L has ample time to spend as she wishes, and the carer’s visits are the minimum necessary for her safety and wellbeing, being largely concerned to ensure that she is eating, taking liquids and coping generally in other respects.
  4. This is a finely balanced case; but on the totality of everything that I have read in the files, I have come to the conclusion and find that whilst the arrangements (clearly) constitute restrictions on Mrs L’s liberty, they do not quite cross the line to being a deprivation of it. If I were wrong about that, and if there is a deprivation of Mrs L’s liberty, is it to be imputed to the State? On the facts, I find not. This is a shared arrangement set up by agreement with a caring and pro-active family: and the responsibility of the State is, it seems to me, diluted by the strong role which the family has played and continues to play. I do not consider in such circumstances that the mischief of State interference at which Article 5 was and is directed, sufficiently exists.
  5. In these circumstances, my decision is simply that there is no deprivation of Mrs L’s liberty. This is not per se because Mrs L is in her own home; nor because she wishes to be there. Those features alone would not necessarily stop particular arrangements amounting to a deprivation of liberty. Rather it is a finely balanced decision taken on all the facts of the particular case. The question of the court’s authorising the arrangements concerned does not in the circumstances arise, although I would have authorised them if it did. The question of Mrs L’s up to date best interests is better considered back in Birmingham by the District Judge, and I anticipate that it should be capable of being dealt with by consent.

 

 

Even Professionals can find it difficult to know if a person is being deprived of their liberty…

Even Professionals can find Deprivation of Liberty confusing

Reporting restriction orders and anonymisation

 

This Court of Protection case raised, and answered, an important question that was causing people doubts, in relation to Reporting Restriction Orders. It has broader implications than just Court of Protection cases.

A Healthcare NHS Trust and P 2015

http://www.bailii.org/ew/cases/EWCOP/2015/15.html

 

A Reporting Restriction Order is just as you might guess, an Order of the Court saying that the Press can’t report some details on a particular case.  When the Court decides whether to make one, it is balancing up the article 8 right to privacy of the people involved (particularly if they are vulnerable people who can’t consent for themselves) AGAINST the article 10 right to freedom of expression (the concept that the Press ought to be free to report stories of public interest, or that are just interesting to the public)

What you might not know, if you haven’t made an application of this type, is that when faced with a story that you don’t want the Press to run, the procedure to obtain an RRO is to contact the Press and tell them all that there’s a really juicy story that you don’t want them to run.

 

That is so that the argument about article 8 v article 10 can be run with the Press being present and represented.  It does mean that you need to think carefully about whether stamping out a small fire (a newspaper wanting to run a story) by applying for an RRO might mean you accidentally starting a forest fire (by shouting “Fire, fire” to the rest of the media)

 

It is also worth noting that the transparency guidelines are that any application for an RRO, whether granted or not, should have an anonymised judgment published  – so RROs in practice are really going to be about ensuring that the NAMES of the people involved do not become published.

So, when the Press are told about the application for an RRO, should the real NAMES of the people involved be used, or should they be anonymised?

  1. It is submitted by the Press Association that pre-notification anonymisation appears to becoming a practice amongst claimant lawyers, who appear to be under the erroneous misapprehension that not only would they be committing a contempt but that by identifying the parties to a claim to the media means that the media will or may publish the material before the Court has had the opportunity to consider and possibly prohibit publication. It also suggests that the assumption is being made that the applicant’s right to privacy under Article 8 of the ECHR outweighs the media and public’s rights under Article 10. That approach by lawyers representing applicants seeking reporting restrictions or injunctions in refusing to identify the parties involved in a case involves restricting the media’s rights even before the Court has had an opportunity to consider the matter. That, it is said, leaves the media unable to take advice or make sensible and informed decisions as to what approach, if any, to take in a particular case.
  2. When the Press Association raised the question of identification of the parties with the applicant’s solicitors in this case, the response apparently was that the solicitors would be committing a contempt of court by disclosing the information; the argument put forward today by Mr Sachdeva QC is altogether different.
  3. The short issue of course is whether there is an obligation subject to paragraph 15-17 of the Practice Direction 13A to disclose information.

 

If there is an obligation to provide the real names of those involved as part of the application process, then there’s no issue of contempt of Court in complying with that obligation. And this is the issue that the Court had to decide.

On the one hand, the argument is that giving out the real names might be a contempt of Court and might breach privacy and might pose a risk of the names accidentally leaking out. On the other, if you tell the Press that they aren’t allowed to write about person X, but you don’t tell them who person X is, how can they really know whether they might have already been approached by X about the story, or even whether they would want to run the story.

  1. The questions therefore seem to be as follows. On the one hand the arguments in favour of revealing the parties’ identity to the Press before such an order is made include Practice Direction 13A requiring that the application notice (COP 9) be served with the media notification. The COP 9 has the parties’ names on it as of course does the witness statement (COP24). It is in accordance with open justice to allow the media fully to consider whether to object. It is pragmatic, otherwise the media would have to attend every case to learn the parties’ identity. Arguably no harm is done by notification because the media cannot report the parties’ identity despite no RRO being yet in place without being in contempt and the media will learn the parties’ names once the RRO is made in any event.
  2. Against the proposition is the assertion that the Practice Direction (which is a practice direction, not a Rule of Court) does not require the draft order to be served on the media (as noted by Baker J in Re M). However, he was considering the issue in relation to the identities of a considerable number of people who would be covered by the anonymity order. More directly than that it is simply unnecessary for the media to know the identity of P before forming an opinion on the terms of the RRO being sought, the issues being the centre of interest. Relevance is also placed on the absence of prohibitive order prior to hearing, a breach of which it is said is not clearly a breach of confidence or contempt of court.

Mr Justice Newton marshals the law and principles very well here, and it would be a good source for any RRO research in future cases.

To skip to the conclusion – the Judge was satisfied that the Press having the real names on the application form would not result in those names being published before the Court considered the RRO and that there were a number of safeguards to ensure that would be the case, even if there were to be one maverick or rogue player:-

  1. I am therefore completely satisfied that a number of factors come together preventing the media from revealing the parties’ names, because

    1. It would be a statutory contempt.

    2. It would be a contempt of common law.

    3. It would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect).

    4. It would be a breach of confidence.

  2. In the interests of transparency, the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names. I therefore order the disclosure of the identity of P and the family to the Injunctions Alert Service so that the Press may respond if they wish to do so.

 

 

The statutory contempt of court bit is interesting, particularly in relation to publication of information whilst the proceedings have not been concluded.

  1. Section 1 of the Contempt of Court Act 1981 provides:

    “In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”

    Section 2 of the Act sets out the scope of strict liability. The following must be established to the criminal standard:

    a) publication addressed to the public at large, as any sections of the public;

    b) publication which creates a substantial risk that the course of justice in the proceedings in question will be severely impeded or prejudiced;

    c) publication occurs at a time when the proceedings are active.

    So there is a double test, there has to be a risk that the proceedings in question will be affected at all and if affected, the effect will be serious.

  2. Anything that has a deleterious impact on the conduct or outcome of proceedings is prejudicial to the course of justice (I have had regard to the definitions in Arlidge, Eady and Smith on Contempt (citing Re Lonhro 1990 2 AC 154 and AG v Times Newspapers Times 12/2/83).

 

What about common law contempt?

  1. In the unlikely event that statutory contempt is not established common law contempt (under section 6(c) of the Act) could clearly be established. The actus reus and mens rea both have to be established. Lord Bingham in A-G v Newspapers Publishing plc [1997] 1 WLR 926 at 936B-D set out the actus reus to be established:

    “We do not accept that any conduct by a third party inconsistent with an order of the court is enough to constitute the actus reus of contempt. Where it is sought to impose indirect liability on a third party, the justification for doing so lies in that party’s interference with the administration of justice. It is not our view necessary to show that the administration of justice in the relevant proceedings has been wholly frustrated or rendered utterly futile. But it is, we think, necessary to show some significant and adverse effect on the administration of justice. Recognising that the restraints upon freedom of expression should be no wider than are truly necessary in a democratic society, we do not accept that conduct by a third party which is inconsistent with a court order in only a trivial or technical way should expose a party to conviction for contempt.”

  2. At 936H-937A, Lord Bingham set out what had to be established in respect of the necessary mens rea:

    “To show contempt, the [A-G] must establish, to the criminal standard of proof, that: ‘the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire …’

  3. The publication of material contained in an application for reporting restrictions prior to the hearing to determine those restrictions is likely to amount to a contempt of court at common law. It is likely to have a significant and adverse effect on the administration of justice by thwarting the very purpose of the application, thereby making the application for reporting restrictions redundant. Intent to impede or prejudice the administration of justice is likely to be inferred from the context that the publisher will be aware of the context of how the information was received, the purpose for which it was received and the likely restrictions sought in the application.

 

 

Beware the PLO my son! the jaws that bite, the claws that catch (Is the PLO coming to Court of Protection?)

 

Having opened with Lewis Carroll, I’ll digress to Bruce Springsteen – if you practice in the Court of Protection –  “You’d better not pout, you’d better not cry, you’d better watch out, I’m telling you why – the PLO is coming to town”

 

Cases A and B (Court of Protection : Delay and Costs) 2014

http://www.bailii.org/ew/cases/EWCOP/2014/48.html

Mr Justice Peter Jackson  (I know, it is supposed to be Jackson J, but when there are two Jackson J’s, that just causes confusion) gave a judgment in two linked Court of Protection cases that had gone on an inordinate length of time and cost an inordinate amount of public money, and ended with this exhortation to the President  (who of course wears those two hats of President of the Family Division And President of the Court of Protection)

 

The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?

 

I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.

 

Brace yourselves, Court of Protection folk, for “streamlining” and “case management” and “standardised documents” most of which will make you wish that you had taken a different career path – for example, rather than “Law” that you had decided to become a practice subject for CIA agents working on their interrogation techniques.

The Judge has a point here, we absolutely would not tolerate cases involving a vulnerable 8 year old taking 5 years* (*although see case after case of private law children cases that drag on for years and years) and costing this sort of money.

 

  1. In Case A, the proceedings lasted for 18 months. In round figures, the estimated legal costs were £140,000, of which about £60,000 fell on the local authority, £11,000 on a legally-aided family member, and £69,000 on the young man himself, paid from his damages.
  2. In Case B, the proceedings lasted for five years. In round figures, the estimated legal costs were £530,000, of which about £169,000 fell on the local authority, £110,000 on a family member (who ran out of money after three years and represented himself thereafter), and £250,000 on the young man himself, paid for out of legal aid.
  3. These figures are conservative estimates.
  4. Each case therefore generated legal costs at a rate of approximately £9,000 per month.

 

The Judge draws a comparison between taxi drivers and advocates (and not the usual “cab-rank principle” one)

  1. Just as the meter in a taxi keeps running even when not much is happening, so there is a direct correlation between delay and expense. As noted above, the great majority of the cost of these cases fell on the state. Public money is in short supply, not least in the area of legal aid, and must be focussed on where it is most needed: there are currently cases in the Family Court that cannot be fairly tried for lack of paid legal representation. Likewise, Court of Protection cases like these are of real importance and undoubtedly need proper public funding, but they are almost all capable of being decided quickly and efficiently, as the Rules require.
  2. In short, whether we are spending public or private money, the court and the parties have a duty to ensure that the costs are reasonable. That duty perhaps bites particularly sharply when we are deciding that an incapacitated person’s money should be spent on deciding his future, whether he likes it or not.

 

It is very hard to argue against that, and there can be little worse than burning through a vulnerable person’s money in order to protect them from financial or alleged financial abuse (see for example Re G, and the “94 year old woman subject to gagging order” case)

 

What drives up those costs? The Judge identified two major things – a search for a perfect solution, rather than a decent solution that carries with it some imperfections, and a tendency to deal with every concievable issue rather than to focus on what really matters.

 

A common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” calls for a sensible decision, not the pursuit of perfection.

Likewise, there is a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved. As Mrs Justice Parker said in Re PB [2014] EWCOP 14:

“All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources and other court users.”

  1. There is also a tendency for professional co-operation to be dissipated in litigation. This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.
  2. The problem of excessive costs is not confined to the Court of Protection. In his recent judgment in J v J [2014] EWHC 3654 (Fam). Mr Justice Mostyn referred to the £920,000 spent by a divorcing couple on financial proceedings as “grotesque”. In V v V [2011] EWHC 1190 (Fam), I described the sum of £925,000 spent by a couple who had not even begun their financial proceedings as “absurd”. Yet everyday experience in the High Court, Family Court and Court of Protection shows that these are by no means isolated examples: in some case the costs are even greater. There is a danger that we become habituated to what Mostyn J called “this madness”, and that we admire the problem instead of eliminating it.
  3. The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings.

 

I hope that if there is going to be a committee or working group on solving some of the problems in the Court of Protection that they can co-opt Mr Justice Peter Jackson and District Judge Eldergill onto it – both of them are extremely sensitive and sensible Judges and the Court of Protection could do a lot worse than have its future steered by them.

No point being the richest woman in the graveyard

Re JI (revocation of lasting power of attorney) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/36.html

 

This was a Court of Protection decision by Senior Judge Lush, who I’ve reported on a lot and who is a Judge that always does a good judgment.

 

It was a case of alleged financial abuse of a vulnerable person by a member of their family appointed to look after their money for them. I know that the Court of Protection has its critics – myself included sometimes, but without them, this woman would have been bled dry by this relative, her own daughter.

 

JL was born in 1938 and lives in her own home in Essex. JL has Alzheimer’s disease.

 On 8 October 2013 she executed a digital LPA for property and financial affairs and, as far as I am aware, this is the first occasion on which the court has considered a digital LPA in the context of an application to revoke the appointment of an attorney.

 

 The LPA was drawn up by JL’s daughter AS online and, perhaps not surprisingly, JL appointed AS to be her sole attorney. She did not receive any independent advice about the creation of the LPA, though AS claims that she fully explained the document to her mother before she signed it.

 

 A friend of the family witnessed JL’s signature and acted as the certificate provider. The function of the certificate provider is to certify that:

 

(a) the donor understands the purpose of the LPA and the scope of the authority conferred under it;

 

(b) no fraud or undue pressure is being used to induce the donor to create the LPA; and

 

(c) there is nothing else which would prevent the LPA from being created by the completion of the prescribed form.

 

Over a period of time, it became apparent that JL was living in squalor and not having her financial needs met – although she had capital funds to provide for her, she was not being given the money she needed.

 

(a) Essex County Council reported its concerns to the OPG on 24 April 2014.

 

(b) Copies of JL’s bank statements revealed that there had been a number of excessive and uncharacteristic withdrawals from her funds.

 

(c) From 18 January to 9 April 2014 there had been twenty-five cheque withdrawals ‘paid to cash’ totalling £4,290. These payments averaged £171 and were withdrawn every few days.

 

(d) Over the same period JL’s only capital asset other than her home had halved in value to £10,669 and, at the current level of expenditure, her funds would be entirely depleted within nine months.

 

(e) The investigator at the OPG spoke over the phone to JL’s social worker, Sharon Morris, who stated that a man, who had recently been released from prison, had offered JL £100 to perform a sexual act for him.

 

(f) JL had told Sharon Morris that her attorney kept her so short of money that she considered prostitution as the only way of resolving the problem.

 

(g) In particular, JL said she needed the money so that she could pay the train fare from Sheffield for her son to visit her (£100) and to compensate him for the overtime he would otherwise have earned but for the visit (£80).

 

(h) AS, on the other hand, claimed she gave her mother £600 a month spending money.

 

(i) JL was paying £32 a month for her daughter’s T-Mobile phone contract, but many other bills were left unpaid and she owed £946 to Npower.

 

 

The daughter objected to being removed as an Attorney and for Essex to be appointed in her stead. The Court heard evidence and had to apply the tests of the Mental Capacity Act.

 

 

I am, indeed, satisfied that AS has behaved in a way that contravenes her authority and is not in JL’s best interests.

 

(a) She admits that she failed to keep proper accounts and financial records.

 

(b) Her explanation for the dramatic increase in JL’s expenditure was “there is no point in her being the wealthiest woman in the graveyard.”

 

(c) She profited from her position by using her mother’s money to pay her own mobile phone bill.

 

(d) There is evidence that she placed JL under pressure regarding this matter.

 

As this had been a Lasting Power of Attorney set up online, with no independent person explaining things to JL (who had capacity at that time – or at least, one hopes so – part of the danger of doing it online is that she doesn’t necessarily meet with anyone independent to confirm that), it becomes even more important that the Attorney who signs the document saying that it has all been explained to JL actually does this proper job of explanation. Otherwise it looks like a snow job.

 

I shall consider these reasons in a little more detail. First, AS admits that she failed to keep proper records and accounts. At the hearing she said she did not know she had to keep accounts and that she had not read the declaration in Part C of the prescribed form of LPA, which she had signed. It says:

 

 

“I understand my role and responsibilities under this lasting power of attorney, in particular:

I have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.”

 

This admission is damning enough, but it gives rise to additional concern about the circumstances in which the LPA was created. If AS failed to read Part C, it makes it hard to believe her assertion that she had carefully read and explained to her mother the contents of Part A of the LPA – the part that the donor is required to complete.

 

 

AS’s retort that there was no point in her mother being the wealthiest woman in the graveyard is trite and misses the point. JL is far from being a wealthy woman and what funds she has should be applied for her benefit and in her best interests. She lives in squalor. When Social Services initially visited her on 1 July 2013 they observed animal faeces on the carpets from her dog and three cats. Her food had a layer of mould on it, but she was nevertheless reheating and eating it, and she had neither washed nor changed her clothes for six months.

 

[But hey, as long as the daughter’s mobile phone bill is getting paid, everything is fine, right?]

 

Finally, as regards AS exerting pressure on JL, in her witness statement dated 26 September 2014 JL’s social worker, Sharon Morris, said:

 

 

“JL has discussed concerns regarding her relationship with her daughter AS with me on several occasions. JL can get very anxious when at times she cannot contact her for days. She does not answer her calls or the door when she visits. On the occasions she does meet with her daughter she reports that she shouts at her and pressurises her for money.”

 

I have to say that from my own observation of AS’s demeanour at the hearing that she came over as forceful and persistent and I imagine it would be difficult for a lonely, vulnerable woman with a cognitive impairment to resist complying with her wishes and demands.

 

 

The Court, quite rightly, removed AS as an Attorney. It is always a shame when this sort of thing happens, because the best people to look after a vulnerable person and manage their finances are relatives, where possible. But it is vital that those relatives realise that their responsibility is to spend JL’s money on her, and meeting her needs, and not using their vulnerable mother as a personal piggy bank.

 

I am satisfied that (1) AS has behaved in a way that contravenes her authority and is not in JL’s best interests, and (2) JL lacks capacity to revoke the LPA herself, and I shall revoke the LPA for her.

 

 

With regard to the appointment of a deputy for property and affairs, I consider that it would be in JL’s best interests to appoint the authorised officer for property and affairs deputyships of Essex County Council as her substantive deputy. He is already acting as her interim deputy by virtue of my order of 10 June 2014 and JL has expressed a preference that he should continue to manage her funds.

 

journalist’s right to private and family life with her source

A very interesting decision by the President sitting in the Court of Protection in Re G (an adult) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

 

This is the 3rd judgment in relation to this 94 year old woman in the last two months. I’m going to try here, not to get too far into the controversy (I’m sure the comments will descend into that, but let’s TRY to focus on the principles and issues in THIS judgment)

THIS judgment relates to the application by the Daily Mail news group (ALN) to be joined as a party to the Court of Protection proceedings, to have an input into the questions to be posed to the expert, and ultimately to have the chance to cross-examine everyone. That’s a unique application, and the reasoning behind the decision is therefore interesting.

We do need SOME historical context though, so we need to know that the decisions being made by the Court of Protection are controversial, that G is 95 and that C her live-in carer is very actively campaigning about the controversial decisions and unfairness, part of that campaign includes involving the Press (the ubiquituous Mr Booker, and this time Ms Reid of the  Mail on Sunday). G has talked to those journalists, and at times been very keen to tell her story, at other times it is said that she finds the press involvement intrusive.  The Press want to report on the injustice that G and C may have suffered, and want to report as much as possible. In the second judgment, Cobb J ruled that there were doubts about G’s capacity to talk to the Press and that there needed to be an assessment of that and in effect a cease-fire on the Press talking to G until it could be established whether she (a) had capacity to do that and (b) if not, would it be in her best interests to do so.

 

If you want to skip to the chorus, it is HEARING THREE heading

 

Hearing one

The first judgment, 26th February 2014   was decided by Russell J.  http://www.bailii.org/ew/cases/EWCOP/2014/485.html

That case was brought by the Local Authority, who had become concerned about the influence that C (the carer) was having over G, and particularly that G was being influenced to change her will to the benefit of C.  (These allegations are all disputed by G)

This is the judge’s summary

 

  • In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

 

 

 

  • The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

 

 

 

  • The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

 

 

 

  • All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

 

 

That judgment made reference to the press reporting of the case to that point, and that the press were present in Court

 

At the outset of the hearing it was drawn to my attention that there had been a very short article on Sunday in the press which, thankfully, did not name G. I have held these proceedings in open court but have restricted the publication of the names of the parties, and at this stage, of the local authority and the expert witnesses. This will be subject to review. I have done so to protect the privacy of G who is old, frail and vulnerable. She has repeatedly told me she wants no further intrusion in her life. The purpose of this order is to protect her privacy and to protect her from intrusion. As the case was heard in open court I have to make an order restricting publication of identification of G and the other parties to put that protection in place. Members of the public and the media were present in court through out the hearing.

 

G had a degree of dementia. She was assessed by an Independent Social Worker  (underlining mine)

 

 

  • Mr Gillman-Smith, the independent social worker (ISW) was instructed to carry out an assessment of capacity and the nature of any lack of capacity such as by undue influence. Mr Gillman-Smith was asked to prepare a report in which he was to ascertain the true wishes and feelings of G in respect of her care arrangements; her living arrangements and her property and affairs. He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA or because of undue influence. Orders had been made prior to his instruction that C and AF leave the property and allow the assessments to be carried out.

 

 

 

  • On this occasion G had an advocate present in the person of D (D attended these proceedings and sat in court) who left and allowed Mr Gillman-Smith to interview G alone. G had difficulties in remembering her relatives; she could not remember the name or her relationship to her relative in the Netherlands. She was quite forthcoming about C and F describing C as bossy and herself as like the fly in the spider’s web, “and the spider eats you up.” C she indicated to be the spider.

 

 

 

  • G was at best ambivalent about C; as she said “she works well” but that she threatened to walk out and then F would look after her if G did not do what C was asking; she does house work “but what is in her mind?” G described her as a wolf in sheep’s clothing. She also said this of church members. C would not let her sleep during the day; she said C physically shakes her sometimes; dresses her and then undresses her replacing her clothes with the same ones. She said she was rough with her; She repeated that she was shaken and like the fly in the spider’s web. She repeated the belief that the court proceedings had been brought by H.

 

 

There was also an expert, Dr Lowenstein, who reported.  Again, underlining mine for emphasis

 

 

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94″; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

[The Court of course, did not HAVE to consider Dr Lowenstein’s evidence at all, since it had been obtained without leave of the Court, but they did so]

 

Russell J’s conclusions on G’s capacity were these

 

  • In respect of financial matters there is evidence that G is unaware of her financial situation, of her income and expenditure. While there is good reason to believe from what she herself has told others, that this information is being kept from her and that she is fearful of C should she try to regain control, there is also evidence that she has difficulties in retaining information and formulating decisions as described by Dr Barker [46]. Both he and Mr Gillman-Smith considered the influence and controlling behaviour of C and F to make decision making even more difficult for G; it is obvious to this court from what she has said that she is at times almost paralysed by the threats regarding her removal to a care-home or to have F take over her personal and intimate care.

 

 

 

  • The impairment of G’s brain has affected her ability to retain information relevant to the decisions she has to make, as described by Dr Barker. She has difficulty in understanding the necessary information and to use and weigh the information. G could not remember the details of her will, and did not know the name of the advocate present when she saw Dr Barker or why he was there, despite having told Dr Barker his name the previous week. G referred to C and F as H and R (the previous carers) and expressed paranoid ideas about social services and previous friends from the church saying they were after what they could get from her.

 

 

 

  • There is evidence that G understands some of the information relevant to decision making, for example she well understands that she is frail and needs assistance with her personal care and house-work to be able to remain in her home and that C provides that care. At the same time G is either unaware of or unable to remember details of C’s and F’s backgrounds; she could not, for example, say how old they were. She also understands that C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her.

 

 

 

  • I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction.

 

 

A request was made for an order that C not exercise any of her powers under the Lasting Power of Attorney to manage G’s affairs and finances, and the Court agreed with this.

 

[Everything that the Judge decided is very hotly contested by those lobbying on C’s behalf, and indeed the journalists who have spoken to G, but the judgment was not appealed]

 

Hearing two

 

This was before Cobb J on 26th March 2014   http://www.bailii.org/ew/cases/EWCOP/2014/959.html

 

This hearing was particularly about whether G had the capacity to give interviews to journalists or be interviewed with a view to stories being reported.  G remained living in her own home, with C as her carer (the only real change from the previous hearing was that C was no longer in a position to manage G’s finances)

Cobb J begins by remarking that members of the Press are present and that they are welcomed. He does pass comment on the reporting of the Russell J decision

 

  • I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.

 

 

 

 

  • Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J’s judgment or the evidence heard by the court. That is highly regrettable.

 

Cobb J felt that the issue of whether G had capacity, and if not, whether it was in her best interests to talk to the Press required some specialised assessment and evidence

 

  • Having heard these submissions, I invited all counsel to consider whether the first question which I should in fact be considering in this case on these issues is whether G has capacity to communicate directly with the press now. Given the press interest (it is, after all, here both in the form of a court reporter and as an interested party, represented) the sooner there is a capacity assessment available on that issue the better. After an adjournment for parties to take instructions, the London Borough of Redbridge indicated that it accepted this approach and refined its position to seeking an adjournment of today’s application in order to commission a further issue-specific capacity assessment by Dr. Barker. It was said that this could be completed within two weeks; it proposed that the matter should then be relisted for consideration. It invited me to make interim orders, as holding orders, in the meantime.

 

 

 

 

  • This approach was supported by the Official Solicitor in all respects.

 

 

 

 

  • Those orders were opposed by C, who asserted that there was no proper basis on which I could or should go down this route. F associated himself on this issue (as on all issues) with C.

 

 

 

 

  • It is self-evident that the question of G’s capacity to engage with members of the press (with a view to sharing her story publicly) has to be assessed properly and expertly before the court could reach any informed view as to whether it is in G’s best interests that she should in fact do so. In those circumstances, I propose to accede to the application to adjourn the Local Authority’s application for substantive relief in this respect, and shall re-list this application on the first available date, which is 2nd May 2014, before Russell J. I shall give the Local Authority leave to instruct Dr. Barker to undertake the capacity assessment specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing.

 

 

 Having made the decision to get expert evidence from Dr Barker on those issues, the only issue remaining was what should happen in the interim – should the Press be talking to G, or should those legitimate journalistic desires to get the story be put on hold until the Court could decide whether G had capacity to make that decision for herself?

 

  • I have “reason to believe” that G does indeed lack the capacity in relation to decisions concerning communications with the press.

 

 

 

 

  • There is no doubt that in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.

 

 

 

 

  • As to section 48(c), I have to do my best to weigh up on the evidence available to me whether it is in G’s best interests that I should make such an order.

 

 

 

 

  • On the one hand, there is evidence before the court that G indeed wishes to communicate with the press. That evidence is provided not only by G herself, but also by Ms Reid, a journalist who has now met with G on one occasion at her home. Furthermore, in a discussion with Miss Moore, G is reported to have said that she was “happy” that the article written by Ms Reid had indeed been written: “… it let them know what they do to the elderly“.

 

 

 

 

  • Of course, at present the press is circumscribed in what they can report of what G says about the proceedings. In my judgment there is indeed a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G’s private and family life.

 

 

 

 

  • On the other hand, it is clear from the attendance notes helpfully provided by Miss Moore that at other times G has expressed less than positive views about the involvement of the press in her life. She has said: “The newspaper trying to say I am crazy when I am not crazy…” She has gone on to say, when asked about the article in the Daily Mail: “I don’t know how happy I would be about that. I don’t want anybody from the press. They put what they like. They put in details that are not correct.” She also told me that she valued her privacy.

 

 

 

 

  • There is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore, graphically described herself as the fly “in the spider’s web … the fly cannot get out of the spider’s web“. She has confirmed elsewhere and to others that C is “the spider“.

 

 

 

 

  • There is a concern that while Ms Reid has indicated to me that she has made but one visit to G’s home, others may have visited or repeatedly phoned G. G told Miss Moore, on her most recent visit yesterday:

 

 

 

She said reporters are always at her home or phoning her“.

 

That said, she added:

 

She said she wants people to know what is happening to her and that it has gone all around the world already.

 

And

 

I asked her if she remembered the name of anyone she had spoken to. She said she did not.

 

  • I bear in mind, when considering G’s best interests in this regard, that there is now clearly signalled a likely application by Associated Newspapers to relax the Reporting Restriction Order. The press will argue for a wider ability to report on G and her situation.

 

 

 

 

  • It seems to me that, weighing these matters one against the other, it is not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G’s best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2nd May.

 

 

  • I shall require Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form

 

 

 

Readers may also be interested in the paragraphs dealing with C taking G to protest at Parliament.

The other issue was that C was resistant to social workers visiting G

 

  • I am satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G’s needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital. I do not believe that the neighbourhood team proposed by Ms Hewson would adequately or appropriately discharge the function of monitoring as I envisage it should be delivered. I was advised that the neighbourhood team:

 

 

 

were not in a position to act as a substitute for Social Services … she” [that is a representative PCSO from the Redbridge Neighbourhood Team] “…did not think they had the resources to commit to twice-weekly visits … the Neighbourhood Team did not want to get drawn into court proceedings but would agree to resume visits to [G’s home] on an ad hoc basis … the team could not commit to a weekly visit but would ‘pop in every so often and have a chat with G for ten minutes’.”

 

 

  • For those reasons it is self-evident that the Neighbourhood Team could not discharge the responsibility which I regard as important in order to safeguard G’s welfare within the home.

 

 

 

 

  • I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers, going forward.

 

 

Again, this is all hotly contested, but the judgment has not been appealed

 

Hearing Three

 

This one was before the President, on 1st May 2014  http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

Apologies in advance, some of this is going to have to get technical.

There were two issues raised

1. Was Ms Reid, journalist for the  Mail on Sunday, in any trouble?  And latterly, did she have an article 8 right to private and family life that allowed her to visit G and have a say in her life?

 

2. Should Associated Newspapers Limited ( the Mail) be joined as a party to the proceedings, as per their application, and could they have an input into the questions to be put to Dr Barker following Cobb J’s judgment above?

 

The first is thankfully pretty short. Cobb J of course said that until the next hearing when Dr Barker’s report was available, journalists should not interview G, that it was not in G’s interests to talk to the Press and that “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings … “

What happened, allegedly, after that judgment was given, was that Sue Reid from the Daily Mail spoke with G and in effect said that she was not allowed to interview her anymore, but would visit her as a friend. (I say alleged, because of course the Court has not made any findings or heard any evidence, and this assertion might be complete nonsense. One has to be fair.  All I can see is that from THIS judgment, the President does not say that the allegation is denied. It could well have been, but it just did not get recorded in the judgment. So it is an allegation only.

 

  • On 2 April 2014, solicitors acting for the Official Solicitor wrote a letter to ANL which, after referring to Cobb J’s judgment, continued as follows:

 

 

“After the hearing Ms Reid was heard outside court telling G that as the judge had stopped Ms Reid contacting her, Ms Reid would have to make social visits to G instead. Clearly this would be completely inappropriate in view of the judgment of Cobb J. The court heard that Ms Reid has only met with G at her home on one occasion and we assume that this was for the purpose of publishing her article dated 20 February 2014. We are not sure why Ms Reid would seek to make social visits to G

We write to clarify that Ms Reid will not seek to circumvent the Order of Cobb J by making social visits to G. Please respond urgently confirming that Ms Reid will not attempt to visit G before this matter returns to Court on 2 May 2014.”

ANL replied on 3 April 2014. Its response prompted the Official Solicitor’s solicitors to write again on 8 April 2014:

“We write further to your letter dated 3 April 2014. The Official Solicitor remains concerned about your client’s proposed actions and note that you have not provided an assurance that Miss Reid will not seek to visit G before the matter is again before the Court on 2 May 2014. We refer you specifically to paragraph 40 of the Judgment of Mr Justice Cobb dated 26 March 2014.

We enclose a sealed copy of the Order of Mr Justice Cobb dated 26 March 2014. In view of this please can you confirm whether your client has made any social visits to G since the hearing on 26 March 2014 and whether she intends to make any visits in the future?”

In the interests of fairness, I shall report that whether those allegations were true or not did not trouble the President, since even if they were true, he didn’t think they raised any concern that should worry the Court.

  • As I remarked during the hearing, I do not understand the basis upon which these letters were written. The complaints they contain are made by reference to Cobb J’s judgment. But nothing that Ms Reid was alleged to have done amounted to a breach of anything contained in Cobb J’s order. If the basis of complaint was that Ms Reid’s conduct was somehow rendered improper by the terms of the declarations which Cobb J had made, there is in law no foundation for any such contention: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras 118-122. The frailty of the argument, whatever it be, is demonstrated by the revealing use of such phrases as “completely inappropriate” and “seek to circumvent”. The approach set out in the letters is somewhat reminiscent of the approach on which I had occasion to comment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 115-120.

 

So there you go, whether Ms Reid had said this or not, it would have been fine if she had said it, and it would have been fine if she had in fact gone to visit G as a friend.  [I might myself have had a different view as to the true purpose of those visits, but what is sauce for the goose is sauce for the gander – the Judge has said it, nobody has appealed it, so the issue is settled]

 

On the secondary issue, whether Ms Reid had article 8 rights in relation to G

I deal finally with the separate argument based on Ms Reid’s asserted Article 8 rights. There are, in my judgment, two short answers to this. In the first place, there is no application by Ms Reid; the application is by ANL. Secondly, and more fundamentally, for reasons I have already explained, it makes no difference whether the argument is put on the basis of Article 10 or Article 8. Neither provides any foundation for the grant of relief of the kind being sought by Mr Wolanski.

 

[In a case that is already peppered with D and G, and F and H, the Judge explained all of the article 8 issues by use of X andY, which makes it hard going. In effect what he says is that G can have an article 8 right that she wants to spend time with Sue Reid, but if G doesn’t want to spend time with Sue Reid (or lacks capacity and the Court have to rule on her best interests) then Sue Reid doesn’t have an article 8 right to access to G. It is more complex than that, I’ve reduced it to a manageable form because there are real people reading this blog]

 

The big stuff then – should ANL be made a party?  Having already dragged X and Y into the alphabet soup, we broaden out by introducing here S (the subject – here G) and J (the journalist, here Sue Reid).

  • Where no relief going beyond the existing reporting restriction order is being sought against ANL, the issues are quite different. There is, for example, no application for any order restraining ANL from publishing any information it has already received from either G or her carers. Nor, despite some of the rhetoric deployed by ANL, is there anything in Cobb J’s order or in the relief now being sought by the local authority which bears upon ANL’s freedom to report any court proceedings. From ANL’s perspective, leaving the existing reporting restriction order on one side, this is, as Mr Millar correctly submits, not an ‘imparting’ case, it is at best a ‘receiving’ case. And, as he goes on to submit, the problem which therefore stands in ANL’s way is the Leander principle.

 

 

 

  • The starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.

 

  • But what if, as here, S – in the present case, G – arguably lacks capacity? At this point I can usefully go to the analysis in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 57-59.

 

 

 

  • In that case, the Official Solicitor, as Pamela’s (E’s) litigation friend, sought an injunction to restrain the broadcasting of a film featuring Pamela which Pamela wished to be broadcast. I summarised the proper approach as follows (para 59):

 

 

“in a case such as this there are in principle three questions which have to be considered:

(i) Does Pamela lack capacity? If yes, then

(ii) Is it in Pamela’s best interests that the film not be broadcast? If yes, then

(iii) Do Pamela’s interests under Art 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Art 10.”

 

  • The first question for the court goes to capacity. There are two reasons for this: first, because the Court of Protection has jurisdiction only in relation to those who lack capacity; second, and more fundamental, because if S does have capacity then the decision as to whether or not to impart information to J (or, if the information has already been imparted by S to J, the decision by S as to whether or not to bring proceedings against J) is exclusively a matter for S.

 

 

 

  • Assuming that S lacks capacity the next question for the court is whether or not it is in S’s best interests to impart the information to J (or, if that has already happened, whether or not S’s best interests require that an injunction is granted against J). This is because best interests is the test by which the Court of Protection or, as in E, the High Court exercising its inherent jurisdiction, takes on behalf of S the decision which, lacking capacity, S is unable to take himself.

 

 

 

  • Pausing at this point in the analysis, and for essentially the same reasons as in relation to Article 8, it follows in my judgment that the identification by the Court of Protection of S’s best interests does not give rise to any justiciable issue as between J and S. Nor is there any justiciable issue as between J and S in relation to the question of S’s capacity.

 

 

 

  • As Mr Millar puts it, and I agree, the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander, “wish or be willing” to impart the information to J. Where S lacks capacity, what the court is doing when deciding whether or not it is in S’s best interests for the information to be imparted to J (or, if already imparted to J, whether or not it is in S’s best interests for it to be imparted by J to others), is doing what, if S had capacity, S would be doing in deciding whether or not to impart the information to J (or, as the case may be, in deciding whether or not to seek an injunction to restrain J imparting it to others). As Mr Millar points out, J would have no right or interest in relation to such a decision by S, if S had capacity. Why, he asks rhetorically, should it make any difference that, because S lacks capacity, the very same decision is being taken on behalf of S by the court. I agree. Nor can J have any right or interest in the prior decision by the court as to whether or not S lacks capacity. Ms Burnham characterises the capacity issue as a “gateway” to giving effect to what she says is J’s right to receive information from S if she were willing to impart it. So it may be, but the argument breaks down, both on the Leander point and because it overlooks the true nature of what is happening when the court decides on behalf of S where S’s best interests lie.

 

 

 

  • Of course, the court’s best interests decision in relation to S is not necessarily determinative. If the court decides that it in S’s best interests for information to be imparted to J (or, if that has already happened, that S’s best interests do not require the grant of an injunction) then that is the end of the matter. There is no conflict between S’s best interests and J’s rights. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by Article 10, the court moves on to the third and final stage of the inquiry. But at this stage S’s best interests are not determinative. There is a balancing exercise. The court is no longer exercising its protective jurisdiction in relation to S but rather its ordinary jurisdiction under the Convention as between claimant and defendant. Accordingly it has to balance the competing interests: S’s interest under Article 8 (as ascertained by the court), and therefore her right under Article 8 to keep her private life private, and J’s rights under Article 10. And at this stage, if relief is being sought against J (or against the world at large), J’s Article 10 rights are directly implicated. So J will be entitled to be heard in opposition to the order being sought.

 

 

 

[That’s very considered and dense stuff – basically the Judge is saying that people get party status to litigate if there is a conflict between them and the other parties that gives right to an argument that the Court has power to resolve and needs to resolve. There isn’t that here.  ANL have legitimate interest in any application for Reporting Restriction Order or injunctions against them or their staff, but they don’t have a legitimate interest in the argument between G, C and the Local Authority.  They might be interested IN IT, but that’s not the same thing]

 

  • ANL’s first application is to be joined as a party. Mr Millar and Ms Davidson submit that the application is misconceived. I agree.

 

 

 

  • In the first place, and as I have already explained, the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there is no reason for ANL to be joined.

 

 

 

  • Secondly, and following on from this, ANL cannot bring itself within either CoPR 2007 rule 75(1), upon which Mr Wolanski relies, or within rule 73(2). Rule 73(2) permits the court to order a person to be joined as a party “if it considers that it is desirable to do so for the purposes of dealing with the application”, and rule 75(1) permits “any person with a sufficient interest [to] apply to the court to be joined as a party to the proceedings.” Mr Wolanski’s application was put forward on the footing that ANL has a “sufficient interest” within the meaning of rule 75(1). In my judgment it does not.

 

 

 

  • The meaning of these provisions was considered by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, paras 41-43, a case relied upon by Ms Davidson, in a passage that requires to be read in full. For present purposes I need refer only to Bodey J’s statement (para 41) that “sufficient interest” in rule 75(1) “should be interpreted to mean “a sufficient interest in the proceedings” as distinct from some commercial interest of the applicant’s own” and that “an applicant for joinder who or which does not have an interest in the ascertainment of the incapacitated person’s best interests is unlikely to be a “person with sufficient interest””, that (para 42) the “clear import” of the wording of rule 73(2) is that “the joinder of such an applicant would be to enable the court better to deal with the substantive application”, and that (para 43) the word “desirable” “necessarily imports a judicial discretion as regards balancing the pros and cons of the particular joinder sought in the particular circumstances of the case.” I respectfully agree with that approach. In my judgment, ANL does not, in the relevant sense, have a “sufficient interest”. Nor is its joinder “desirable.”

 

 

 

  • Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), that would not give ANL a “sufficient interest” in the proceedings, as distinct from the discrete application within the proceedings, nor would it make it “desirable” to join ANL as a party to the proceedings. On the contrary, it would be highly undesirable for ANL to be joined, because as a party it would be entitled to access to all the documents in the proceedings unless some good reason could be shown why it should not, and the grounds for restricting a party’s access to the documents are very narrowly circumscribed: see RC v CC and another [2014] EWHC 131 (COP). Nor, as I have pointed out, would there be any need for ANL to be joined as a party. It would, as Mr Millar concedes, be entitled to be heard as an intervener.

 

 

 

  • I should add that this is an area of the law where there has been, initially in the Family Division and more recently also in the Court of Protection, very extensive forensic activity involving the media for at least the last twenty-five years. I am not aware of any case, nor were either Mr Millar or Mr Wolanski with their very great experience of such matters able to point me to any case, where a journalist or media organisation has been joined as a party to the proceedings, as distinct from being permitted to intervene. This is surely suggestive of a well-founded assumption that joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.

 

 

 

  • In the light of my decision in relation to ANL’s first application, its two other applications fall away. In the first place, if it is not to be joined as a party, what is the basis of its claim either to see Dr Barker’s full report or to ask him questions? There is none. Moreover, and as I have explained, Dr Barker’s report does not go to any justiciable issue as between ANL and G, or between ANL and anyone else. If some relief is sought against ANL, then the application will have to be assessed on its merits, having regard to whatever evidence is relied upon, whether in support of or in opposition to the application. That is the point at which ANL’s Article 10 rights are engaged. And at that point ANL will be able to contest the application, whether by challenging the evidence relied on by the applicant or by adducing its own evidence.

 

 

 

  • I should add this, in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in the proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for G.

 

 

 

(I will conclude by saying that whilst I too think that the ANL application was misconcieved in law, I can see why in practice they made it.  IF their story is (and it pretty much is) that the Court of Protection is a wicked terrible body, interfering with people’s freedoms and ignoring what dear old G wants, then I can see why they think that the Court of Protection DECIDING whether G should talk to the Press is something of a conflict of interest.  Imagine for a moment that it had been Maria Miller’s decision and it had been solely up to her whether any of the Press were allowed to report her expenses scandal. As the ANL think that the expert is going to be set up to say “Don’t let G talk to the Press, it isn’t good for her” they wanted to have an input into what he was asked and to have the chance to cross-examine him if that’s what he said.  That somewhat ignores the fact that C is already a party and is able to have that input and cross-examine Dr Barker, but I can honestly see why the Mail made this application from an emotional and journalistic perspective.   They couldn’t have got a judge who was more keen on transparency and openness though, so if they couldn’t persuade the President, it was a hopeless application)

I will add that I think that Sue Reid genuinely believes that what is happening here is an outrage and a miscarriage of justice, and that she is reporting what C and G are saying to them with absolute sincerity.  It is absolutely right that she follow her journalistic instincts and that if there is something rotten in the State of Denmark that this be exposed.

 

 

 

 

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