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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.

Your Honour, I am afraid that I have not done a position statement, but may I just hand this up?

I think this summarises our position

I think this summarises our position

 

 

I thought of that gag this morning, and kudos to Cobb J for giving me the opportunity to deploy it.

 

Newcastle City Council v WM and Others 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/42.html

 

When a High Court Judge asks why you haven’t filed and served a position statement, don’t do THIS

 

 

  • I return to consider some of the matters outlined at the beginning of this judgment.
  • At the outset of this hearing not one of the respondents’ advocates had troubled to prepare a Position Statement. Counsel addressed me on the first morning of the hearing to explain the absence of these documents addressing me as if the requirement for such a document were a personal idiosyncrasy of mine. It is not. May I, for the record, remind counsel again of the following points: PD27A para.4.3:

 

At the commencement of the bundle there shall be inserted the following documents (the preliminary documents) –

(a) an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if practicable, to four A4 pages;

(b) a statement of the issue or issues to be determined (1) at that hearing and (2) at the final hearing;

(c) a position statement by each party including a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing;

(d) an up to date chronology, if it is a final hearing or if the summary under (i) is insufficient;

(e) skeleton arguments, if appropriate;

(f) a list of essential reading for that hearing; and

(g) the time estimate (see paragraph 10.1).

 

  • May I draw to their further attention PD27A, §4.4:

 

Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties’ legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents

And PD27A para 6.4:

The preliminary documents shall be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a judge of the High Court and the name of the judge is known, shall (with the exception of the authorities, which are to be lodged in hard copy and not sent by email) at the same time be sent by email to the judge’s clerk

Sadly, this is once again one of those cases where poor planning and preparation had led to massive delays for the children,  and unfairness in the process, and once again, the misuse of section 20 played a part

  • The burden of judicial decision-making has regrettably been made significantly more complex by the failures of the professionals and child care systems involved with this family. To give prominence to those failures, I highlight some of them at the outset of this judgment:

i) At the time of the final hearing, the children have been in foster care for 93 weeks awaiting a decision about them;ii) The children were accommodated under section 20 of the Children Act 1989 (“CA 1989″) from July 2013 until March 2015, when interim care orders were made (under section 38 of the CA 1989) at the Issues Resolution Hearing;

iii) The ‘letter before proceedings’ (prepared pursuant to PD12A FPR 2010) was sent to the parents in January 2013, 73 weeks before the proceedings were ultimately issued (July 2014);

iv) The final hearing is taking place in the 43rd week, not the 26th week following issue (see section 14(2)(ii) of the Children and Families Act 2014);

v) The mother has significant learning disability; she has an assessed IQ of 61. She is assessed to lack capacity to litigate in these proceedings. There is a significant question whether she ever had capacity to consent to the accommodation of her children (it is said, per Dr. Thorpe, consultant psychiatrist, that “she did not appear to understand the reasons why her children had been placed in foster care”), and whether, in the circumstances, the children were for the extended period referred to above lawfully accommodated;

vi) On any of the outcomes proposed for the children, they will have to be separated; as indicated above, the family placement on offer is for the two older children only. The Local Authority does not contemplate an adoptive placement for all three siblings together;

vii) The youngest child has spent more than half his life waiting for a decision about his long-term future, which is, and has been for some time, essentially undisputed;

viii) The Children’s Guardian and Local Authority propose radically different outcomes for the older children. The Social Worker and the parties were only made aware of the final recommendation of the Guardian on the first morning of the hearing.

ix) The maternal aunt, who wishes to care for the children, suffers a serious and debilitating eye condition; it is identified and briefly described in the independent social work assessment of her capacity to care for the children. The aunt’s lawyers did not apparently explore the implications of this condition before the hearing began. The extent of her significant visual disability was astonishingly only revealed at the conclusion of her oral evidence, and only when I asked to describe it (she had obviously been struggling to read from the documents presented to her while giving evidence); this led to a short adjournment during the hearing to obtain necessary expert medical evidence;

x) In a case which generates a range of possible outcomes, and in which some of the key parties have vacillated about their preferences during the proceedings, none of the respondent advocates had prepared position statements prior to the final hearing (I exonerate Ms Moulder as she stepped in on day 2 of the final hearing to replace counsel who had unavoidably had to relinquish the brief at short notice, and for entirely legitimate reasons), leaving me, when reading into the case, to speculate about their final preferred outcomes;

xi) There was no attempt by the Local Authority to provide one pared-down trial bundle of the relevant material; I was provided with four lever arch files; no reading list and no reading time.

  • Lessons are obviously to be learned from the sorry state of affairs described in paragraph [3] above. I suspect that the facts outlined above speak for themselves. Lest they don’t, I expand more about them in the judgment which follows, and (in relation to (x) and (xi)) in the post-script which follows the judgment (see [105-111]).

 

I think that we are really close to the judiciary making human rights compensation orders in these cases – these children had on that reading been unlawfully accommodated for around 21 months, as the mother did not have capacity to consent to such accommodation.

 

Even more wretched than that, is that when the case was finally litigated, the Judge concluded that two of the children should be placed with a family member, their aunt. That could have been done much much earlier, and the children spent more time in care than was necessary. That’s a tragedy.

 

The judicial analysis and approach is excellent, and the judgment as a whole is worth reading.

 

Lest you think the whole thing is critical, the Judge was more than willing to lavish praise on those who deserved it.

 

 

  • Having identified some of the failures in the case, I turn next, and briefly, to one of its significant redeeming features. The role of the intermediary service.
  • I wish to pay particular tribute to Clare Jones and Rebecca Fletcher from Communicourt Limited who offered an excellent intermediary service to the Court for the mother in this case. The mother has significant communication difficulties, both with understanding and using language; this is likely to be attributable in part to her learning disability, and in part to acquiring English as a second language.
  • Ms Jones’ report, dated 20 February 2015, was clear and practical, providing guidance about how best to manage the case in a way which would optimise the mother’s participation. Ms Jones was regrettably unable to attend the final hearing, and the intermediary service was therefore provided by Ms Fletcher, who performed her role with great skill and discretion. Ground rules had been set by HHJ Hudson at the IRH; these were re-visited at the outset of the hearing. Specific ground rules were set for the mother’s evidence, which we all endeavoured conscientiously to observe.
  • Overall, I was satisfied that the mother had been enabled to participate in the process as fully and effectively as could possibly be achieved. I am indebted to the intermediary service for its assistance

 

 

Capacity to consent to sex – do you want a Hanc or a Hunc?

Mostyn J has just given a ruling in the Court of Protection  – London Borough of Tower Hamlets and TB 2014

http://www.bailii.org/ew/cases/EWCOP/2014/53.html

Within this case, Mostyn does two significant things.

 

The first is that he refines his own test for capacity to consent to sexual intercourse, and is much persuaded by Hedley J’s formulation.

Regular readers will be aware that the Court of Protection’s usual approach to capacity to consent to sexual intercourse is to look at three issues :-

 

(a) Understanding of the mechanics

(b) Understanding of the health risks

(c) Understanding of the risk of pregnancy.

 

Mostyn J says that he has changed his mind as to whether that is the right test

Although I am not going so far as figuratively to hold my hand in the flames like Cranmer I have had cause to reconsider my previous opinion.

 

Before Mostyn J, legal argument took place that bears some resemblance to that discussion in Gremlins 2 about whether a Mogwai is fed after midnight if he is on a plane crossing the international date line…

  1. I deal first with the pregnancy element. In A Local Authority v TZ [2013] EWCOP 2322 Baker J concluded at para 31 that in the case of a person clearly established to be homosexual it is ordinarily unnecessary to establish that he or she has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy. In this case Mr McKendrick argues that because TB has had an IUD inserted she is in an equivalent position. The argument became increasingly far-fetched. We discussed a man who has had a vasectomy. A woman who is beyond childbearing. A man wearing a condom. Mr McGuire QC rightly captured the unreality of this debate in his final submissions when he said:

    “But following this link produces nonsensical results. What if a woman happens to have fertility issues? Or is already pregnant? Or is beyond childbearing age? Would knowledge of this link be irrelevant for a man? “

 

And as a result, Mostyn J decided that it would be best for the third part of the test to simply form part of the second part (health issues)

I have come to the conclusion that the third element of risk of pregnancy should not be a separate one. Rather it should be subsumed into the second which should simply be expressed as: “that there are health risks involved”. All sexual activity has some health risks. The most obvious ones are pregnancy or STDs. But over-robust sexual activity can cause wounding or bruising, external or internal. Any sexual activity can cause psychological harm. A simple criterion as I have suggested would resolve the dilemma I expressed in para 43 of D Borough Council v AB [2011] EWCOP 101, which on reflection came perilously close to introducing a quoad hanc dimension when I had been at pains to repudiate that.

 

If you are wondering what quoad hanc means   [i.e you are not my regular commentor Andrew, or David Burrows] it raises its head in this judgment here, where Mostyn J raises a complaint that a formulation is unnecessarily overcomplicated and goes on to explain it in Latin.   (I am biting my tongue here)

The first thing that the cases have decided is that the test for capacity to consent to sexual relationships is, to use rather laboured language, general and issue specific, rather than person or event specific: see IM v LM [2014] EWCA Civ 37 at para 79. In canonical language the incapacity must be quoad hunc not quoad hanc, in contrast to the position under section 12(a) Matrimonial Causes Act 1973 where the incapacity to consummate may be on either basis[2].

Quoad Hanc is where someone is not able to have sex with a particular individual, and Quoad Hunc is where they are not able to have sex with anyone.  i.e the difference between not being able to have sex with Hank (perhaps because he has body odour) and not being able to have sex even with a hunk (because you just can’t have sex with anyone)

 

[I am sure Andrew and David will be able to put it better than I have]

Having digressed a bit, is the capacity to consent to sexual intercourse test now just

(a) Understanding of the mechanics, and

(b) Understanding of the health risks  ?

 

Well, not so fast there Hank.

Mostyn J reminds himself and us that he had previously been asked to consider whether the understanding of the ability to say “yes” or “no” to sex should be a factor, and had rejected this. He has now changed his mind, and gives credit to Hedley J in relation to this

  1. I now turn to the question whether the relevant information should include as a separate element an awareness that lawful sex requires the consent of all parties and that that consent can be withdrawn at any time. In my previous decision of D Borough Council v AB I accepted at para 35 that I should not conflate the capacity to consent to sex and the exercise of that capacity. Therefore I rejected Dr Hall’s third head of capacity.
  2. In this case the OS agrees that being able to say yes or no to sexual relations is part of the weighing process under section 3(1)(c), and that this is made explicit by the terms of section 3(4)(a). Notwithstanding this concession Ms Greaney disputes that it should be an independent head of awareness because to do so would conflate capacity with the necessary exercise of free will. She argues that consent is the product of capacity and the exercise of free will.
  3. However, in A Local Authority v H [2012] EWHC 49 (COP) Hedley J with his customary erudition, sensitivity, lucidity and eloquence convincingly persuades me that I was wrong then, and that the OS is wrong now. At para 25 he said this:

    “And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. “

  4. In my judgment this simply cannot be gainsaid. It was accepted by everyone in this case that sex between humans must involve more than mere animalistic coupling. It is psychologically a big deal, to use the vernacular. Hedley J’s formulation captures perfectly why and how that extra ingredient should be defined.
  5. Therefore I conclude that when determining the question of sexual capacity under the MCA the relevant information as referred to in section 3(1)(a) comprises an awareness of the following elements on the part of P:

    i) the mechanics of the act; and

    ii) that there are health risks involved; and

    iii) that he or she has a choice and can refuse.

    I would add that the excellent witness Dr Joyce was of the firm view that this third element was very important. I would also suggest, with all due humility, that the test as formulated by me has the merit of simplicity.

I have to say that for my part, I prefer this revised three part test.  I did have to quickly check whether it clashes with the Court of Appeal in Re IM v LM 2014 and I don’t believe that it does. So this is now the new test to be used.

 

[In the instant case, the woman understood the mechanics, understood that she enjoyed sex but did not understand that she could say no. Her husband for religious reasons believed that it was her duty to have sex with him on request – her general level of functioning was that of an 8 year old. Mostyn J held that she did not have capacity to consent to sex on the basis that she had no understanding of her ability to say no]

 

The second issue of import in the judgment was that there was a Deprivation of Liberty Element – this woman wanted to go back to her husband and was being prevented from doing so. In part because he intended to have sex with her about twice a week and she lacked capacity to consent.

That allowed Mostyn J to revisit his decision in Rotherham. And if you think that he has softened on that, as he has changed his mind on the capacity test, you are wrong.

  1. My decision of Rochdale Metropolitan Borough Council v KW [2014] EWCOP 45 has aroused a certain amount of criticism. For example, Sarah Lambert, the head of policy for the National Autistic Society has stated that:

    “This decision appears to directly contravene the Supreme Court’s ruling that liberty must mean the same for all, regardless of disability.

    Any move to revisit or unpick this definition would be a huge step back. NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism.”

  2. The appeal in Rochdale Metropolitan Borough Council v KW will be heard by the Court of Appeal on 4 or 5 February 2015.
  3. If nothing else, I think it is important that I meet the criticism that I have sought to encroach on essential protections for disabled people, and amplify my reasoning.
  4. In para 17 of my decision I said this:

    “It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5. “

  5. The suggestion that “the dissimilarity justifies differential treatment in the nature of protective measures” was not a personal idiosyncrasy. It is justified by high authority

Mostyn J goes on to set out those authorities, but I will pass over those – they are available in the judgment if you wish to see them.

57…The state is obliged to secure the human dignity of the disabled by recognising that “their situation is significantly different from that of the able-bodied”. Thus measures should be taken “to ameliorate and compensate for [those] disabilities.”

  1. But to characterise those measures as state detention is to my mind unreal. I referred to the historical context in which Article 5 of the ECHR 1950 came to be formulated. It followed the Universal Declaration of Human Rights of 10 December 1948 which in its preamble referred to “the disregard and contempt for human rights [which] have resulted in barbarous acts which have outraged the conscience of mankind”; which in article 3 guaranteed liberty; and which in article 9 proscribed “arbitrary arrest, detention or exile.” It was aimed at the midnight knock on the door; the sudden disappearance; the prolonged detention. Article 5 was not aimed at Katherine, seriously physically and mentally disabled, who is living in her own home and cared for round the clock by carers paid for by an organ of the state.
  2. In this case TB will not be cared for at a place which she understands to be her home. Further, she has the motor functions to achieve a departure in a meaningful sense. She will be monitored round the clock and were she to leave to try to go “home” she would be brought back. Her situation is therefore very different to Katherine’s, and the acid test is met. Although I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision. I therefore declare that TB’s care regime does involve detention under Article 5. Accordingly there must be at least six-monthly reviews by this Court, no doubt at some considerable expense to the public purse.
  3. At para 1 of my decision in Rochdale Metropolitan Borough Council v KW I referred to the very serious resource implications to local authorities and the state generally if periodical court reviews are required in such cases. Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers

 

There’s some force in that – the Supreme Court have, in setting out the law, put many thousands of people in living circumstances which now amount to a breach of article 5, and the Court of Protection is going to be swamped with cases. Mostyn J has taken a pragmatic line, and we wait to see if the Court of Appeal think the same.  For my part, I think that the Supreme Court captured this point and the fact that on the ground it has enormous consequences for very many cases doesn’t detract from the principle.  The Supreme Court have explained what the test is, and the fact that it is going to have massive repercussions can only go so far.

 

Capacity and financial consent orders

 

MAP v RAP 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4784.html

 

I don’t often write on the financial side of legal family disputes (I haven’t done divorce law for about ten years, and it is the sort of thing that you rapidly lose expertise in), but this particular ancillary relief case also touches on capacity, and particularly capacity to enter into agreements, so it has some broader impact.

 

The High Court were dealing here with the wife’s challenge to a financial consent order that she had signed, having dismissed her solicitors. At a later stage, she considered that she had not been in a mental frame of mind where she could properly enter into that consent order – i.e the issue was whether she had capacity to sign it at the time, not just that she signed it and later thought better of it. She had had a long-standing difficulty with bi-polar disorder, which can be a fluctuating condition.   This was thus the wife’s appeal of the Judge’s order to approve the financial consent order as final settlement of the financial claims arising from divorce.

 

The appeal was determined by Mostyn J  (back on his area of particular expertise after something of a break)

 

The permission is sought to appeal this order well out of time on a number of grounds:
 

 

1. first, it is said that at the time that the order was made and indeed in the antecedent period leading up to the making of the order, there is prima facie evidence that the proposed appellant, the wife in the divorce proceedings, did not have capacity to enter into that compromise;
2. second, it is said that the court itself had no knowledge of the appellant’s state of mental health, and therefore approved an order on a false or mis-stated basis;
3. third, it is said that – and this ground has shades of duress – that the respondent husband exploited the appellant’s vulnerable position;
4. further, it is said that he at the material time was guilty of material non-disclosure;
5. next it is said that at the relevant time the appellant had inadequate knowledge and was without legal advice; and
6. further, it is said that, looked at overall, the consent order was wrong and should not have been approved, as it was manifestly unfair. It is said – I believe this to be arguable, but it is certainly not agreed – that the effect of the order was to divide the parties’ capital about 80 per cent to the husband and 20 per cent to the wife. Moreover, within the the share that the wife was left with were monies which derived from an inheritance from her mother, and indeed a considerable part of the share that the husband was left with derived from the wife’s mother’s inheritance;
7. finally, it was said that the agreement was demonstrably wrong and unfair because it provided for a clean break leaving the husband with his earnings and pension and the wife only with a modest pension for herself.

 

On the ground that the consent order was unfair, or so demonstrably wrong that a Judge ought not to have made it, even though it was a consent order, Mostyn J rejected that utterly

 

I say immediately before I turn to the facts, that inasmuch as a claim is advanced based on non-disclosure or that the consent order was generally unfair, I am completely satisfied that the proposed appeal has no prospect of success. As to the first, the evidence advanced for non-disclosure is but faintly put, and in my view does not come anywhere near establishing the criterion of arguability. As to the complaint that the agreement was generally unfair, that is not a valid basis for seeking to challenge a consent order. (See the decision of Mr. Justice Munby (as he then was) in L v L [2008] 1 FLR 26 at para.105).

 

The appeal therefore was squarely on the basis that the Wife lacked capacity to sign the consent order at that time. Mostyn J remarks that despite people arguing about divorce (and particularly money divorce) for over a century, this is the first time that this particular issue has arisen.

 

Mostyn J, borrowing from the  civil law, and civil procedures, arrives at the conclusion that an order made by consent by a party who lacks capacity to consent is an order that would be invalid and should be set aside. The difficulty of course, is in establishing capacity or lack of it  (remember from the Mental Capacity Act 2005 that the starting point is that a person HAS capacity unless there is evidence to the contrary). The order having been made, an appeal was an appropriate route to challenge it.

 

Mostyn J points to the provisions of Practice Direction 15B (not in force at the time, but in force now)

At the relevant time, I do not believe that Practice Direction 15B was in force, but a Practice Note issued by the Family Justice Council in April 2010 which is in the same terms, more or less, was available. Practice Direction 15B makes it clear that there is a duty on solicitors if they have concerns that a party may lack capacity, that they must notify the court. Paragraph 1.3 says:
 

 

“If at any time during proceedings there is reason to believe that a party may lack capacity to conduct the proceedings, then the court must be notified and directions sought to ensure that this issue is investigated without delay”.
 

It is a surprising fact that neither solicitor at any stage thought it appropriate to notify the court that there may be question marks over the wife’s capacity. The wife’s solicitors themselves were well aware that there were question marks in this regard as a letter was written by them to their opponents on 23rd January 2012 stating:
 

 

“We remain concerned as to our client’s capacity to provide instructions, and accordingly are seeking clarity on this point”.
I should say that that letter that was written when the wife was acting for herself but when her solicitors were presumably still formally on the record. It is fair to me to record Mr. Castle’s submission that at that time the view was taken by the author of that letter only on looking at the papers, but be that as it may that question mark should have led those solicitors to have notified the court. Equally, the husband’s solicitors were well aware in September 2011 that the appellant had been admitted to hospital, there was a letter to that effect, and they must have formed views as to the capacity of the wife, but they did not notify the court. Had the court been notified then I do not believe we would be in the position we now are.

 

What the Court had was evidence about the Wife’s mental health difficulties and that before the consent order had been entered into, her mental health seemed to have deteriorated in such a way that those advising her were concerned about her capacity. But the Wife stopped instructing solicitors and by the time she signed the consent order, she was representing herself. Thus, there was no hard and fast evidence about the state of her capacity and ability to make reasoned decisions on the day she signed the consent order.

 

Capacity for the purposes of entering into a compromise was discussed by the Court of Appeal in the first Dunhill v Burgin case and in the prior case of Bailey v Warren [2006] EWCA (Civ) 51. In that latter case at para.126, Lady Justice Arden said this:
 

 

“The assessment of capacity to conduct proceedings depends to some extent on the nature of the proceedings in contemplation. I can only indicate some of the matters to be considered in accessing a client’s capacity. The client would need to understand how the proceedings were to be funded. He would need to know about the chances of not succeeding and about the risk of an adverse order as to costs. He would need to have capacity to make the sort of decisions that are likely to arise in litigation. Capacity to conduct such proceedings would include the capacity to give proper instructions for and to approve the particulars of claim, and to approve a compromise. For a client to have capacity to approve a compromise, he would need insight into the compromise, an ability to instruct his solicitors to advise him on it, and an understanding of their advice and an ability to weigh their advice”.
 

Applying this test I believe that it is arguable, indeed strongly arguable, that between the time that the consent order was said to be formed in August 2011, right through to the time that the consent order was made on 19th April 2012 the wife did not have the requisite capacity while she was in hospital. In my view the case that she had capacity at that time is unarguable. Following her return from hospital it is true that she gained some kind of an improvement although she remained heavily medicated, but as against that one has to remember that she was making the impulsive and unwise decision to represent herself. So, I am of the view that there is an issue of capacity that deserves to be tried.
 

 

It is a pity that the Supreme Court has not pronounced, because there is a division between the judges in the jurisprudence as to whether the capacity in question should be investigated along a prolonged timeline, or just at the point of the contract itself. But, either way, I believe that the case is distinctly arguable, and so I would grant permission to appeal in relation to that ground as well as into the ground of lack of actual consent or withdrawal of consent. But, as I have indicated, I believe that this is a matter which can properly be tried at first instance.

 

Mostyn J did not determine the appeal finally, but merely those procedural points – could the Wife apply to set aside the consent order, would the consent order be invalid if she were proven to lack capacity at the time, and what the mechanism for the appeal would be.  The appeal itself was listed for two days and a lot will turn on the evidence in relation to capacity.

 

[It is possible, particularly when one looks at detailed consent orders about contact, that the same issues could arise. It would be prudent to look at Practice Direction 15B and to alert the Court if such concerns arise]

Korsakoff’s syndrome, alcoholism and capacity

The Court of Protection in X v A Local Authority 2014  were considering the case of a man who had Korsakoff’s syndrome, this is a disease of the brain almost exclusively seen in very serious alcoholics and it is where the drinking itself has damaged the structure of the brain, one of the manifestations being the difficulty in forming new memories.  This particular man, X, had been a lawyer prior to his problems, and had been a bright, intelligent and articulate man  (despite this, he chose to become a lawyer…)

http://www.bailii.org/ew/cases/EWCOP/2014/B25.html

 

In this particular case, the issue was whether the Court of Protection should decide that X lacked capacity to make decisions for himself, including about where he was to live, and to go on to make decisions for him in his best interests. One of the concerns was that if X were allowed to make his own decisions, he would fall back into alcoholism and cause himself further damage.

 

There was a dispute between professionals as to whether X lacked capacity

 

I move to section 3, the so-called functional test which, in my judgment, is the key point in this case. Section 3(1) says this: “For the purpose of section 2 a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate that decision, whether by talking, using sign language or any other means.” So the test is decision specific and time specific. So if I am to authorise X’s further detention, in other words in effect his deprivation of liberty, then he must currently lack capacity to make a decision as to residence, et cetera.
 

Now the issue is not entirely straight forward with this case. Sadly, his current treating psychiatric consultant, Dr. Al-Kaissy, is absent abroad and so I was unable to hear from her. I have seen, however, an undated mental capacity assessment by her and taken on board what she says in that she is quite sure that he lacks the appropriate executive functioning capacity. It is her view in that report, and also that of the social worker, who has known him for the duration of his illness, Ms Kingdom, that he continues to lack capacity; or rather I do not have an updated report from Dr. Al-Kaissy but the social worker remains of the view that he continues to lack that capacity. By contrast, Dr. Loosemore does not accept that he now lacks the appropriate capacity, a view supported by Lucy Bright, the social worker who, together with Dr. Loosemore, assessed him for deprivation of liberty purposes. I did not hear from Miss Bright but nonetheless I have read what she has to say and I notice that she said that he continues to have a poor short term memory and that he needs prompting in connection with washing and dressing. But she made a number of observations which I shall read. At D108 in the bundle she said this: “Both Dr. Loosemore and I had a lengthy interview with X and as a result of this interview Dr. Loosemore concluded that X has capacity to consent to his care and treatment at the V Care Home. I agree with this finding and, whilst I am aware that [X’s] capacity may fluctuate, it would be difficult to conclude that he lacks capacity from the information he gave and understanding that he displayed during the interview.” She continued to say this: “Given the conclusion reached by Dr. Loosemore that [X] has capacity to consent to his accommodation, care and treatment at the V Care Centre, he is not eligible for the Deprivation of Liberty safeguards and so this process now stops. I am aware others may challenge this finding and, given the variable way in which [X] can present, it may be worth a second opinion being sought, but the Mental Capacity Act is clear that someone’s capacity should be assessed when they are at their best”, and she goes on: “I would suggest that a way forward would be the care providers to draw up a voluntary contract with [X] about his length of stay at the unit including any support that they assess he needs accessing the community and how it can be provided with [X]’s consent. Efforts also need to be made swiftly to identify [X]’s long term accommodation needs and a suitable care package when he moves on from the rehabilitation unit.”
 

Dr. Loosemore reported in the same way and in his conclusion at D86 he says this: “I thought that Mr. [X] had capacity to decide on receiving care and treatment at the V Care Home. Although he did not like the experience of residing in the care home he is willing to stay for a period of assessment. If he were to be formally deprived of his liberty I think he would become distressed and aggrieved.” His conclusion was very plain that X does not lack capacity with regard to residence, et cetera.
 

In the course of oral evidence on Wednesday Dr. Loosemore firmly held to the view that X does not meet the statutory test, the functional test, under section 3 of the Act. He had seen X, he thought, for an hour, though Miss Bright wrote it was in fact 90 minutes. He by coincidence knew him when he was sectioned under section 2 of the Mental Health Act in December 2013 and certainly then he was very unwell. He conceded that X’s capacity could fluctuate, but he observed, as does Miss Bright, that he needs to look at him at his best and he remained of the view throughout cross-examination that X does not lack capacity to make decisions as to residence, et cetera. He did not accept that, because there was a risk that X would resume drinking, that implied a lack of capacity. He had not spoken to the treating psychiatrist, Dr. Al-Kaissy, nor to the key social worker, in the course of forming his independent opinion, nor had he explicitly in the course of the document he completed referred to the factors set out in section 3 of the 2005 Act, but he nonetheless was of the view that X had appropriate understanding and that he can retain information as necessary, and he had completed his analysis on that basis with that conclusion. Although the completed document he had to fill in for the assessment purposes does not permit detailed analysis, nonetheless he was of the view that section 3 does not apply in this case. He conceded of course he did not refer to the section in his report but pointed out that the form F6 does not provide for the section 3 criteria to be referred to. He was satisfied that X can give an account of where he is residing, what his role there and what the benefits of residing there are. X knew he was not about to leave but averred that he did not get on well with the other residents. He was sure that X’s mental state was improving and that he did not require detention at the V Care Home. He agreed that X had seemed reluctant to give up all drinking and enjoys a social drink, as he indicated also in evidence to me; but he also had said that he would abstain entirely if he had to. He conceded that it is always difficult to gauge with those who drink to excess as to the veracity of their promises. People who have a drinking problem make specious promises, he noted. He had not seen the current brief assessment of Dr. Al-Kaissy to which I have referred but he remained of the view that X now has capacity. He accepted of course Dr. Al-Kaissy has seen X regularly but it was his view that he was dealing now with a man very changed from the poor state in which he was presenting on 19th December of last year. Moreover, X had told him he was willing to stay voluntarily for a while and his view is that X is no longer disorientated, confused as to the date, et cetera, and, although he is a little repetitive, he is no longer rambling in his presentation. He described X as not fitting in with the rest of the ward but described him as rational and reasonable, logical in his thought processes. He had now the capacity to reflect on how he was and he agreed with the typed assessment of Miss Bright when considering the standard authorisation. He was shown the report of a neuropsychologist for 7th May but this did not alter his conclusions. I have to say that I found Dr. Loosemore to be a very persuasive witness. His view that X now has capacity was compelling.
 

Ms Andrea Kingdom is a very experienced and very concerned social worker. I have read her statement of 21st May which of course has been overtaken by events. Contrary to Dr. Loosemore’s opinion she thought X continues to lack capacity. There is no doubt of course that she knows him well and is very concerned about him, and I entirely accept that in law I am quite able to reject Dr. Loosemore’s opinion and find that X lacks capacity for the purposes of section 48 so I can make an interim order. She still feels that X has difficulty in retaining information and she was concerned, because he is a highly intelligent man, that he is able to mask his cognitive difficulties. She felt he had unrealistic expectations as to the future, constantly saying he hopes to live again with his first wife and even remarry her and live with her. She was concerned too because he has no real idea as to where he is going to live upon discharge. She is concerned because when he had had leave in the past he has sought to drink on one occasion and then been found standing dangerously near a busy trunk road. On an occasion, when he went out to A House, he sought to obtain alcohol and kept asking for it. She felt Dr. Loosemore had seen X but briefly and that it is after about two hours with him that his present difficulties continue to manifest themselves. She did not accept that X’s insight into his condition has appropriately increased and knew that he would not give up drinking. She was quite worried about him damaging himself. I listened very carefully to Ms Kingdom. I thought her evidence was very kindly and well intentioned. I make no criticisms of her professionally. I accept that there are many matters to be concerned about with regard to X but it is my view that he has shown rather more insight than she attributes to him. Of course she is used to patients who revert to mental illness and difficulties, but I do not accept that she has established the section 3 criteria to my reasonable satisfaction.
 

X gave evidence unsworn at the suggestion of all the advocates in the case. In the course of his brief evidence to me he indicated, first, a wish to live with and, if possible, remarry his first wife. He told me she has been in regular contact with him since he has been hospitalised and, to his surprise and gratification, he thinks their relationship is in the course of being re-kindled, though he does not wish to rush things. He showed a tendency to repeat himself. He told me the information about his ex-first wife four times during the course of his evidence. He told me that he had decided he wishes to stay in the V Care Home until he can obtain either a home with his first wife or rented property and he would need a garden, he said. I felt this was a somewhat incomplete plan but, in fairness to him, he then went on to say that he would make contact with agents to try and find a place to live. He told me he is separated from P, his second wife, and told me that his excessive drinking and then hospitalisation and sectioning had been a “bitter experience”. He was unable to explain why he was found standing by the main road, why he bought alcohol on leave and why he had sought alcohol when he visited A House. Now, I entirely accept that his plans for a reconciliation with his first wife and finding a home with her are vague and perhaps overly optimistic; but for all of that there was a degree of realism in what he said for he said he could not leave the home yet and would stay there till he found a place to go. His concept of his needs was plainly a little vague and I had to put to him that he would need visits from a C.P.N. and social workers to assist him to plan for his life. But I was left with the impression that this is not a man who is masking his illness or his cognitive capacity. His evidence, in my judgment, is more than that of just a man used to presenting a case in court and putting it simply in the best light for its own sake.

 

 

These are difficult issues, and even perhaps philosophically difficult. Does a person who is an alcoholic have capacity to make proper informed decisions about whether or not to drink? Are they balancing up the pros and cons when considering it? Or are they acting under the influence of an addiction or craving more powerful than their will?  Of course, we don’t as a society try to declare that all alcoholics lack capacity to make decisions for themselves, but in that narrow issue – “Can they decide whether to eschew alcohol?”  it is arguable that they don’t have capacity.

But for the purposes of the declaration sought, the capacity issues were much broader, and in those regards, the Court was satisfied that X did have capacity – he might go on to exercise his autonomy badly, he might make poor choices, he might put himself in harms way, but if he has that autonomy, he has the right to make the decisions for himself and live with the consequences.

 

I have carefully and, I hope, sympathetically borne in mind the findings and concerns of Ms. Kingdom. He may drink to excess again, but that, in my view, is an unwise decision rather than a sign of continuing incapacity. I accept, as I have said, his short term memory problems are still there but, if one applies the Re: F decision and the S.M.B.C. v. W.M.P. decisions to which I have referred then I cannot find sufficient evidence to justify a reasonable belief that he lacks capacity in the relevant regard.

 

X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end.

 

Capacity to live with your husband

 

The Court of Protection case of Re PB (2014)

http://www.bailii.org/ew/cases/EWCOP/2014/14.html

 

The case involved a 72 year old woman PB, whom Norfolk CC considered to lack capacity and also felt that she could not safely live in her own home with her husband TB who was 50 and also said to lack capacity.

As ever with the Court of Protection, the first step is to establish whether  a person lacks capacity to make decisions on their own behalf, with the starting point of the Mental Capacity Act 2005 being that they DO unless proved otherwise. A person with capacity is entitled to make poor or foolish decisions, decisions that nobody around them thinks are right. We have autonomy to make our own mistakes, as long as we understand the nature of our decision and what the pros and cons are.

 

We end up with, in the Mental Capacity Act 2005, a clear bright line between someone who has capacity (in which case the Court of Protection have to let them make their own decisions) and someone who does not (in which case the Court of Protection can be asked to make a decision on their behalf striving to do so in their best interests)

Is capaciy really such a clear bright line? This case throws up some doubts for me.

 

Let’s look at what PB herself said to Parker J

 

 

  • PB wrote to me before the hearing. In particular she wrote that “I should like to point out that it is the right of every individual to choose for himself or herself whom to live with and where to live and not to live under the shadow of regimentation and have to live in an institution”.

 

 

 

  • I was asked prior to the hearing, and when I had had no opportunity to assess the background, whether I would see PB at the hearing. I reserved that decision for the trial. At court I was also asked to see TB. I was happy to do so, but stressed that care has to be taken as to how a meeting shall be treated. The protected party does not give an sworn/affirmed account, and in particular if the meeting takes place only in the presence of the judge, with no opportunity to test the evidence, then in my view no factual conclusions save those which relate to the meeting itself should be drawn, in particular with regard to capacity (see YLA v PM and Another [2013] EWHC 4020 (COP) at [35].

 

 

 

  • As it turned out, neither wished to give evidence. They each asked to speak to me in the courtroom with all representatives present. This took place on day three. PB spoke to me first, followed by TB. Each sat close to the bench and was at liberty, as I told them, to talk about what they felt and wanted, and any other topic. They were not cross examined, and I did not ask any questions. I did speak to PB about the medical procedure which she was reluctant to undergo.

 

 

 

  • PB is likeable, highly intelligent, sophisticated and articulate, well-read and knowledgeable. She writes poetry. With regard to marriage she told me “Let no man put asunder” and “once a couple are married – meant to be together”. She denied that she had been ill for 50 years. She stated “I haven’t lived with my siblings for 50 years”.

 

 

 

  • It is obvious to me from all that I have read and heard as well as from the meeting that PB’s intellectual understanding is at a high level. She stated “I understand that this Act only came in in 2005. I wonder whether it’s working out as it should be”.

 

 

 

  • She told me, when asked what she wanted to happen, “I’d like to be free to wander the universe without being told to sit down and be quiet”, “I’d like to get my poetry published”, “I’d like [TB] to be always at my side”, and “I’ve never hit a carer” (the evidence is that she has).

 

 

 

  • TB is also likeable, and he was articulate and sincere. He said “How do you take decisions” “we have a lot of confidence in one another, we should be living together as man and wife”, “The social worker has done a good job”. He wants to go back to F House to be with PB. He volunteered that he had “tapped the manager on the nose”.

 

 

 

  • I accept that whatever their respective problems this couple has a long standing and committed relationship and that they love one another dearly. There is no issue as to their capacity to marry: the marriage was celebrated many decades ago

 

 

 

PB here comes across as intelligent and articulate – the Judge saying that her intellectul understanding is at a high level  (her critique of the Mental Capacity Act is one which is put very well, and which many people share)

 

What did the medical experts say about her capacity?

 

 

  • Particularly since PB presents in a sophisticated manner, as Dr Khalifa told me, it has been an advantage for me to have had the treating physician with long term knowledge to give evidence on the issues. Dr Khalifa stems from Sudan but has worked in Ireland before coming to practice in England as a consultant in old age psychiatry. English is not her first language and her idiomatic understanding has some gaps. That gave rise to a misunderstanding in writing, as will be seen. Her reports were also not clear, taken in conjunction with the joint statement (appended hereto).

 

 

 

  • There is a considerable degree of consensus between the experts:

 

 

i) Dr Barker thinks that the diagnosis is schizo-affective disorder. Dr Khalifa thinks it is residual schizophrenia. I agree, as the doctors agreed, that this makes no difference to their overall views.

ii) Both agree that PB has cognitive problems. Dr Khalifa says that she has compromised executive function stemming from her frontal lobe. This is a known problem in schizophrenia. Dr Barker accepts that she has frontal lobe damage, which he described as “mild brain damage”. Dr Barker also thinks that she has an “ageing brain”.

 

  • Dr Khalifa explained in oral evidence (which she gave the day after Dr Barker) that:

 

 

i) Executive dysfunction is progressive.

ii) It is implicated in planning, judgment, and decision making.

iii) PB has problems with working memory, keeping information “on line”, and manipulating the information to make a decision.

iv) She suffers from “poverty of thought” (a global reduction in her quality of thought where the person keeps returning to the same limited ideas).

v) She shows “negative thinking” and lack of initiative.

vi) She is unable to judge situations.

vii) She has problems in “set shifting”: that is in shifting her choice to a new one in the face of negative feedback, and the ability to stick to a new choice.

viii) She has problems in doing more than one thing simultaneously.

ix) Other problems are of selecting appropriate responses and inhibiting inappropriate ones, of generating plans and resolving problems.

x) She cannot compare the risks and the benefits.

 

  • This formulation had not been put forward by Dr Barker and he was not asked about it, since Dr Khalifa’s formulation was not elicited until she gave evidence. But the upshot is that it was not challenged. Nothing that Dr Barker said was inconsistent with it.

 

 

 

  • Dr Khalifa states that PB suffers from intense anxiety which can reach clinical levels and which prevents her from making a decision. She “gets stuck”, as described by Ms Thompson. Dr Barker thinks that many people without mental health problems have problems making difficult decisions. But he agrees that PB’s anxiety can reach clinical levels so that it constitutes impairment/ disturbance.

 

 

 

  • Broadly, Dr Barker is not certain about the extent to which PB’s decisions may be based on her beliefs about marriage, and to what extent TB’s influence leads her to be incapacitous all the time.

 

 

 

  • Dr Barker states that PB is heavily influenced by her husband. When not with TB she has capacity (in his original report he wrote “has considerable capacity”) but may be incapacitous when with him. He does not know to what extent influence may be taken into account in deciding that she is incapacitous.

 

 

 

  • In his report and evidence he suggested that PB may simply be making a decision based on her commitment to marriage over her own wellbeing which is unwise but which is not caused by her mental impairment. “If she has preferred to ally herself with her husband she may accept the level of squalor”. In cross–examination he said that in his view her decisions “are not solely driven by mental impairment” and “it is difficult to judge whether it is cognitive impairment, or other factors which lead her to make unwise, or incapacitous, decisions when with TB”.

 

 

 

  • He said that assessment of whether she was unable to use and weigh might be skewed if PB had chosen to withhold information. She might have different thought processes but was choosing not to disclose that to him. There is evidence that she understands the issue but she may not want to give evidence which may “damage her cause”. This may be a natural denial.

 

 

 

  • That is the best summary of Dr Barker’s views which I can provide. His views were in fact set out in a number of different formulations. Mr Reeder has set them out in his closing document. I need not review that in detail. Dr Barkers’ final position in evidence was that the issue of PB’s capacity is finely balanced and should be decided by the court. He ‘leans’ to the conclusion that she has capacity to make decisions about residence, care and contact in optimal conditions He wavered somewhat as to whether he thought that PB lacked capacity when not with TB, and eventually concluded that he thought that she might do. “I agree that PB lacks capacity in certain situations, for example because of anxiety, mental disorder or influence. I don’t know if she has capacity in optimal circumstances, but I have not seen sufficient evidence that she lacks capacity then”. Ms Street says that the Official Solicitor “interprets” Dr Barker to have said that he thought that the presumption of capacity had not been rebutted.

 

 

 

  • Dr Khalifa’s consistent position in oral evidence was that PB’s mental illness, anxiety and influence from TB all contribute to her inability to weigh information. She lacks capacity at all times, sometimes at a greater level that at others.

 

 

 

  • Dr Barker had drafted the joint statement after their joint meeting. Dr Khalifa told me, and I accept, that he sent it to her and she signed it without further discussion. They recorded agreement that capacity was “finely balanced”. Dr Khalifa told me that she had misunderstood. She did not consider capacity to be finely balanced. She regarded PB and always has as clearly lacking capacity. Furthermore, although they agreed that PB had “considerable capacity” when not subject to TB’s direct influence (adopting Dr Barker’s phrase, by which he seems to have meant something different) both in her report and the joint statement, she did not mean that PB ever had capacity. She “would not separate influence and major psychiatric disorder.” In any event TB’s influence is pervasive. Whenever PB has to consider decisions about living with him or spending time with him she either cannot recall or use and weight the information or is paralysed by anxiety, or both.

 

 

 

  • The joint statement does not clearly address the capacity issue and Dr Khalifa’s clear view only emerged at court. Dr Khalifa told me also that she had wanted to “harmonise” their views. I accept this. Dr Barker’s view was never clearly enough expressed and it seems to me that she thought that this was the best they could do since there was no prospect of getting any clearer formulation. She was wrong to sign up to an accord when in fact there was none. But I am sure she did not appreciate that this would prolong the debate and the enquiry.

 

 

 

  • Both agree that “whether or not the Court finds that she lacks capacity, she is a vulnerable adult and as such requires protection in the context of her relationship with TB.”

 

 

[I don’t personally care much for the last sentence – if PB has capacity, then she has the same autonomy as any of us to make choices and decisions without the State interfering.  I come across this patrician attitude quite a lot, and I’m afraid it is something that makes me bristle. It isn’t the job of the State to make decisions for people who are capable of doing that themselves]

 

There are some problems in this – it appears that Dr Barker felt that PB had capacity to make decisions about where she wanted to live ‘in optimal conditions’ and that PB had ‘considerable capacity’ when not subject to TB’s influence.

 

We’ve all come across people who act foolishly in relation to a love affair  (this might be described as the ‘Gail Tilsley effect’ – a person who is normally sensible, cautious and fairly dull, has all of their common sense go out of the window when their head is turned by love.  Is that a lack of capacity?  Sometimes when this is happening to you, you might describe it as not being able to think straight, you might come out of it saying ‘what was I thinking?’  ‘what possessed me to do that?’  – but is it a lack of capacity?

 

The Judge was asked to prefer the evidence of Dr Barker to Dr Khalifa (who had put things on a much more medical footing regarding decision making, as opposed to Dr Barker, who felt that PB’s judgment was clouded when it came to making decisions about her relationship with TB – which would NOT be a lack of capacity for the purposes of the Act). The Judge instead preferred the evidence of Dr Khalifa.

 

 

  • Ms Street and Mr Reeder asked me to prefer the opinion of Dr Barker to Dr Khalifa. I decline to do so.

 

 

i) I do not agree that Dr Khalifa was approaching the task of assessment from a Mental Health Act “diagnostic” standpoint or safeguarding perspective.

ii) Dr Barker’s evidence was speculative, approached more as a philosophical or academic debate than an opinion. As I have commented above he was reluctant himself to factor a consistent body of information from reliable sources as to PB’s thought processes. He focused on his own assessment rather than looking at the history, in particular the stark picture presented by Ms Thompson’s evidence.

iii) His emphasis on PB’s sophisticated, dextrous use of language, which was not in dispute, caused him to lose focus on the issue of using and weighing the information and the inability to take any decision at all: getting “stuck”, “going along with it”, “acquiescent” (a word which struck him by its “sophistication”).

iv) He had no evidence that PB was deliberately concealing information from him, or her motivation if she was. What she said to him was consistent with “sliding away” from the issues.

v) Dr Barker took the individual elements but did not put them together. He did not address the matters in issue. As I have said, the question was not the wish to be with her husband. The issue was not whether she was wise or unwise to regard their trips together as “romantic” or to regard the bonds of marriage as sacred; but whether she is able to decide where and with whom she is to live and how her care is to be managed.

vi) Dr Khalifa broke down the elements then approached capacity on a holistic basis. I found her oral evidence clear and focussed, well argued, cogent and compelling.

vii) I am satisfied that PB suffers from impairment/disturbance which directly results from the psychiatric disorders identified by Dr Khalifa.

viii) I do not accept Dr Barker’s opinion that PB is only under TB’s influence when she is actually with him. I agree with Dr Khalifa that TB’s influence remains effective even when not she is not with him. This is apparent from the conversations recorded above with Ms Nicholas, Ms Masters, and Dr Khalifa.

ix) And finally key issues on which he focussed are, as he accepted, matters of law or of judgment for the court.

 

Because this issue arose as to whether PB’s mental condition and disorder of the mind was causing her lack of capacity, or whether it was a contributing factor together with her feelings towards her husband and her inability to process logical decisions when considering him, there was a legal issue to be resolved

 

 

  • capacity in this context must mean with regard to the “matter in issue”. Furthermore, “for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist (s 2(1)).” The key words “because of” should not be replaced by “referable to” or “significantly relates to”: PC v City of York Council [2013] EWCA Civ 478.

 

 

 

  • Ms Street submits that “because of” in Section 2 MCA 2005 means “is the sole cause of”. Mr Reeder submits that it means “is the effective cause of“. Ms Burnham suggests that it means “is an effective cause of” and submits that there is no material distinction between “the sole cause” and “the effective cause“.

 

 

 

  • Ms Burnham refers by way of analogy to the Equality Act 2010, where the words “because of” have been construed as meaning “a substantial reason”: it need not be the main reason so long as it “an effective cause”. She cites pre- EA 2010 authority: Owen v Briggs and James, 1982 ICR 618 (CA) and O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1997] 1CR 33. I note other analogous areas of statutory interpretation where a purposive construction has been adopted. Under s 423 Insolvency Act 1996, in order to set aside an impugned transaction its “purpose” must have been to defraud creditors. Purpose does not mean sole purpose: substantial purpose or intention is sufficient (Inland Revenue Commissioners v Hashmi) [2000] 2 BCLC 489, 504, [2000] BPIR 974. Under s 37 Matrimonial Causes Act 1973 there is power to set aside a transaction made with the intention to defeat a claim for a financial remedy. The intention to defeat the claim does not have to be the dominant motive in the transaction; if it is a subsidiary (but material) motive then that will suffice: Kemmis v Kemmis (Welland and Others Intervening), Lazard Brothers and Co (Jersey) Ltd v Norah Holdings Ltd and Others [1988] 1 WLR 1307, [1988] 2 FLR 223.

 

 

 

  • I agree with Ms Burnham that where there are several causes it is logically impossible for one of them to be “the effective cause”. I agree that to hold otherwise would lead to an absurd conclusion because even if impairment or disturbance were the most important factor, wherever there were other factors (however little part they might play) the s 2 MCA 2005 test would not apply.

 

 

 

  • There is nothing Convention incompatible in the concept that multiple factors may affect a decision. Otherwise a person with impaired capacity whose disturbance/impairment of mind operates to disable her from weighing and using information would not fall within the protection of the Act.

 

 

 

  • It seems to me that the true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction.

 

 

 

  • The issue is not, as Mr Reeder puts it, whether “the effect of PB’s views about her marriage is itself an impairment or disturbance or results from an impairment or disturbance”.

 

 

 

  • The question is whether PB lacks capacity in respect of the matter in issue by reason of a disturbance or impairment in the mind or brain so that she cannot use and weigh her choices (which may include choices impelled to whatever extent by such beliefs of feelings) so that he/she is unable to understand, retain, or use and weigh them.

 

 

 

  • Ms Street and Mr Reeder also submit that Dr Khalifa approached the test the wrong way round. They submit that the Code of Practice stipulates that the first step is to decide whether there is a disturbance of mind, and the second to decide on capacity whereas McFarlane LJ in PC v City of York [2013] EWCA Civ 478 stated that this should be considered in reverse order. In my view MacFarlane LJ did not purport to lay down a different test: nor did he take the questions in the reverse order, but simply stressed that there must be a causative nexus between the impairment and the incapacity.

 

 

 

  • I do not consider that it matters what order the expert addressed the issues so long as she or he observes the causative nexus. Dr Khalifa identified the impairment or disturbance, which she described compellingly and in detail, and then clearly advised that this caused the inability to use and weigh.

 

 

 

  • When Dr Khalifa was asked whether PB’s inability to use and weigh the information was “due to” her constantly and clearly communicated views about marriage and her role within that marriage as TB’s wife, Dr Khalifa rightly rejected this as the relevant question and repeated her opinion as to PB’s condition and its effect on the ability to use and weigh. I do not agree that this was “ducking the question”. Dr Khalifa said and repeated that it is difficult to separate PB’s impairment or disturbance of functioning of mind and brain from the question of influence.

 

 

 

  • I regard PB’s condition as the cause of her inability to use and weigh. Her inability to challenge TB may at one time have stemmed from a belief in the ties of marriage: I do not know. But now she is unable to use and weigh the information because of the compromise in her executive functioning and her anxiety.

 

 

and the Judge specifically looked at the issue of Overbearing of the Will

 

Influence/overbearing of the will

 

  • In R v Cooper [2009] UKHL 42, [2009] 1 WLR 1786 at [13] the Supreme Court noted that “The commission therefore recommended the functional approach: this asked whether, at the time the decision had to be made, the person could understand its nature and effects…”. However, the commission went on to accept that understanding might not be enough. There were cases where people could understand the nature and effects of the decision to be made but the effects of their mental disability prevented them from using that information in the decision-making process. The examples given were an anorexic who always decides not to eat or a person whose mental disability meant that he or she was “unable to exert their will against some stronger person who wishes to influence their decisions or against some force majeure of circumstances”: para 3.17. (underlining added for emphasis).

 

 

 

  • I do not accept as Ms Street submits that the underlined passage supports the proposition that the impairment or disturbance must be the sole cause of the inability to make a decision. It does support Ms Burnham’s submission that inability to exert the will against influence because of the impairment or disturbance is relevant.

 

 

 

  • I do not accept that pre MCA authority is irrelevant. It has been held that the jurisdiction of the High Court is not usurped where capacity has been lost because of the influence of another or the impact of external circumstances, and only regained because the court has regulated exposure to such influences which if subsequently reasserted will cause capacity to be lost once more Re G (an adult) (Mental capacity: Court’s Jurisdiction) [2004] EWHC 222 (Fam) and a Local Authority v SA and others.

 

 

 

  • In Re A (Capacity: Refusal of Contraception) [2011] Fam 61 at [73] Bodey J specifically found that Mrs A’s inability to use and weigh was the consequence of the influence of a husband to whom she was fiercely loyal. Ms Street says that this decision is not relevant in the instant case since the words “because of” were not the subject of argument. In my view the issue of influence is a general one, and not limited to the causal nexus between impairment or disturbance of functioning of mind and brain and inability to make a decision. In that case the legal focus was the capacity to use and weigh information in order to make the decision. I do not accept that Bodey J was approaching the case on the wrong “inherent jurisdiction” test.

 

 

 

  • In IM v LM the Court of Appeal recorded Peter Jackson J’s observation that the threshold for those who wish to establish that a person cannot make a decision because they are overborne by influences from others must be a high one “in relation to an act which is so very hard to rationalise.” The Court did not further comment on this formulation. I assume that they approved it. There is no suggestion that influence is not a relevant consideration. They specifically approved Bodey J in Re A (Refusal of Contraception).

 

 

 

  • As I have commented the type of decision to be made in this case is quite different from a decision to engage in sexual relations. It requires consideration of quite complicated choices and an assessment of past and future. In any event the influence/pressure of TB is common ground and is overwhelmingly demonstrated.

 

 

 

  • PB is under TB’s influence whether he is physically present or not. Every time she is asked to make a decision about him his influence, in conjunction with her psychiatric condition, cognitive deficits and anxiety, prevents her from using and weighing the information.

 

 

 

  • But in any event by reason of her condition alone, even without the influence of TB, in my view PB lacks capacity to use and weigh. The history over March and April 2013 in particular demonstrates that PB was not able in reality to make any decision at all which related to TB, or to her care needs. And what she has said during the course of these proceedings demonstrates the same process. Her impairment /disturbance is the effective cause, the primary cause of her inability to make a decision.

 

 

 

  • I have had the advantage, which the experts have not, of surveying all the material in this case and in particular the oral evidence of Ms Thompson. PB, notwithstanding her high intellectual capacity and verbal dexterity, and in spite of her superficial and partial acknowledgement of the risks, is simply unable to factor into her thought processes (i.e. use and weigh) the realities of the harm that she will suffer if she resumes living with TB or has uncontrolled contact with him. And perhaps, even more importantly, she is unable to weigh up the risks to her of being in an unsupported environment, with or without him, without a package of care. This is not to be paternalistic, or to fail to allow her to experience an acceptable degree of risk. It is not a question of allowing her “to make the same mistakes as all other human beings are at liberty to make and not infrequently do.”

 

The Judge decided that PB did lack capacity for the purposes of the Mental Capacity Act 2005 and made the declarations sought by Norfolk, which were in effect that PB could be detained in a home against her wishes and that this deprivation of liberty was authorised.

 

An important point to arise was that Parker J had indicated that IF she had decided that PB DID have capacity, she would still have authorised the same actions (keeping PB in a home and apart from her husband) under the inherent jurisdiction. This is a big deal, because if this became law, it would mean that Local Authorities could ask Courts to make decision about ‘vulnerable’ adults who had capacity to make their own decisions. And as we keep hearing ‘the inherent jurisdiction theoretically has no limits”.  I believe that the Official Solicitor intended to appeal on this point of law, and I wish them all the luck in the world – this would be a major development in the law and a major erosion of the principle that people have autonomy to make bad decisions as long as they have capacity.  It would be a bad day for personal liberties in this country if the inherent jurisdiction were to be extended in this way   (on the flip-side, if you believe that the State is there to protect vulnerable people from making mistakes, then it would be a good day. We can agree to disagree on that)

 

 

 

  • I expressed the view at the conclusion of the hearing that if I did not find that PB lacks capacity I would have made an order in the same terms pursuant to the inherent jurisdiction. This is not strictly necessary, but I understand that the Official Solicitor will consider whether to appeal the decision following receipt of the judgment.

 

 

 

  • Miss Street submits that if PB has capacity that the court cannot impose a residence regime. She submits that the authorities only sanction, in essence, an adjunctive, supportive regime to restrain and protect from others.

 

 

 

  • All accept that the inherent jurisdiction can be invoked where capacity is vitiated by constraint, coercion, undue influence and other disabling circumstances which prevent her from forming and expressing a real and genuine consent: see Munby J (as he then was) in Re SA [2006] EWHC 2942 (a forced marriage case). I accept that this can result from improper influence of another person (indeed this is what is asserted here). Vulnerability, I accept, is a description rather than a precise legal formulation.

 

 

 

  • The reported cases are all fact specific. But I do not read them restrictively, as I am urged. In Re G (an adult) (Mental Capacity: Court’s Jurisdiction) [2004] All ER (d) 33 (Oct) Bennett J determined the place of residence of a vulnerable adult who had regained capacity. He held that he could not ignore the consequences if the court withdrew its protection. If the declarations were in her best interests, the court was not depriving G of her right to make decisions but ensuring that her stable and improved mental health was maintained.

 

 

 

  • Macur J, as she then was, in LBL and (1) RYJ and (2) VJ stated that the court has the ability via the inherent jurisdiction “to facilitate the process of unencumbered decision making by those they have determined free of external pressure or physical restraint in making those decisions”. I do not see that formulation as restricting the exercise of the inherent jurisdiction to prevent placement in a care home, subject to deprivation of liberty issues. In Re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) No 2 [2012] WLR 1439, the Court of Appeal confirmed the inherent jurisdiction as a safety net to protect vulnerable adults subject to coercion or undue influence. The inherent jurisdiction exists to protect, liberate and enhance personal autonomy, but any orders must be both necessary and proportionate. Miss Burnham submits that what is proposed is protective and necessary and proportionate and is not a coercive restricting regime. I am inclined to the view that a regime could be imposed on PB if that is the only way in which her interests can be safeguarded. To be maintained in optimum health, safe, warm, free from physical indignity and cared for is in itself an enhancement of autonomy. In Re L injunctive relief was granted against the parties’ adult son. That in itself was an interference with autonomy in one sense (freedom of association) and an enhancement of autonomy in another (protection against coercion).

 

 

 

  • I see no indication that the inherent jurisdiction is limited to injunctive relief. Each case depends on the degree of protection required and the risks involved. And the court must always consider Article 8 rights and best interests when making a substantive order.

 

 

 

  • Ms Street of course submits that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and “lawful pursuant to Article 5 of the Convention”. She cites Lord Hope in R (Purdy) v DPP [2010] 1 AC 345: (i) there must be a legal basis in domestic jurisdiction (ii) The rule must be sufficiently accessible to the individual affected by the restriction and (iii) it must be sufficiently precise for the person to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law.

 

 

 

  • If I made such an order here a regime would be imposed by a court of law through a legal process of which notice had been given and it would be perfectly possible for a person of sufficient capacity to understand its effect. That fulfils the “Purdy” criteria.

 

 

 

  • However Ms Street also submits that there would be no or insufficient connection between the deprivation of liberty and “unsoundness of mind” within the meaning of Article 5. That would be the only basis upon which I could impose restraint.

 

 

 

  • A person who is incapacitous does not necessarily suffer from unsoundness of mind (see again for instance the anorexia cases). I note that deprivation of liberty is specifically authorised under the 2005 Act in cases of incapacity without reference to unsoundness of mind. It has never so far as I am aware been suggested that the DoLs provisions are in breach of Article 5.

 

 

 

  • “Unsoundness of mind” is not the same as “incapacity”. PB has a diagnosed psychiatric condition which compromises her decision making. If it is not established that she lacks capacity this would be on the narrowest interpretation of MCA 2005 (“because of”) and would not impinge upon her diagnosis or her vulnerability, which results from her psychiatric condition.

 

 

 

  • Ms Street concedes that TB’s influence would be highly relevant under the inherent jurisdiction. PB cannot litigate on her own behalf. The Official Solicitor would be entitled to make an application on her behalf for injunctive relief against TB in her best interests. I would be entitled to make an injunction of my own motion under the inherent jurisdiction preventing him from coming into contact with her, if the Official Solicitor declined to do make an application. If such an order were made she would have nowhere to go. In fact she cannot presently return to his flat in any event because of the landlord’s injunction against her.

 

 

 

  • In my view the inherent jurisdiction does extend to orders for residence at a particular place. If that constitutes a deprivation of liberty then in my view the court could authorise it pursuant to the inherent jurisdiction.

 

 

 

  • Assuming that it would not constitute an unlawful deprivation of liberty in my view I would be entitled to make an order for placement against her will pursuant to the inherent jurisdiction. There are serious risks to PB if she is not properly cared for or if she is not protected against TB. Both Dr Khalifa and Dr Barker recognise that reality.

 

 

 

 

 

Barbecue tongs and police being given power to force entry to a home

 

Another C-section Court of Protection case. You may have seen the Daily Telegraph piece already

http://www.telegraph.co.uk/news/uknews/law-and-order/10952683/Judge-allows-police-to-break-down-womans-door-for-enforced-caesarean.html

 

The Telegraph’s reporting is very faithful to the judgment here, and it is more of a factual report than a comment piece.  The judgment itself is the Mental Health Trust and DD 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/11.html

 

This is the sixth pregnancy that DD has had. She has mild to borderline learning disability (Full scale IQ of between 67 and 75 – if you read cognitive assessments often, that’s in the bottom 1% of the general population, but in the area where USUALLY , and I stress USUALLY the person has the capacity to make decisions for themselves and conduct litigation), but this was compounded by her autistic spectrum disorder, and it was the combination of the two difficulties that led the Court to conclude that she lacked capacity for the purposes of the Mental Health Act.

 

None of the previous five children live with DD or her partner, BC  – her partner is said to have significant learning difficulties and a lower IQ than DD. The obvious compelling fact from the five previous children is this, in relation to child 3

 

In June 2010, on a home visit, DD was found cradling a baby born in her home; the baby was believed to be 5-10 days old. Child 3 (male) was at that point seriously dehydrated and undernourished (it appears that the parents had sought to feed him with cup-a-soup), with lesions on his head believed to be caused by Bar-B-Q tongs which (from information provided by DD and BC at the time) BC had used to assist in the delivery (DD denies this)

 

Added to that is that during the pregnancy of the fourth child, mother suffered an embolism, leading to increased health risks in pregnancy and labour for future children

 

  • On a routine visit to DD’s and BC’s home in July 2011, DD was observed to be very unwell; she was fitting, and unconscious. It later transpired that she had suffered an intracerebral embolism causing fitting (status epilepticus), probably brought about by the pregnancy. BC was unable to say for how long DD had been in this dire state. DD was admitted to hospital as an emergency; her fitting could not be controlled, and she was therefore given general anaesthetic and ventilated on the intensive care unit. Monitoring of the unborn baby revealed evidence of foetal bradycardia (slowing of the heart and consequent distress). In order to treat the patient (DD) and relieve the foetal distress, an emergency caesarean section was therefore performed. DD suffered significant post-partum haemorrhage, and required a 2 unit blood transfusion. Child 4 (female) was born very prematurely at 29 weeks.

 

 

 

  • Following the birth, neither parent sought to see Child 4, nor did they engage with child care proceedings. Child 4 was made the subject of a care and placement order and placed for adoption.

 

 

 

  • Significantly, DD resisted prophylactic injections to prevent further blood clots. The occurrence of the embolism means that any future pregnancy carries an increased risk of stroke and of haemorrhaging

 

 

And then child 5

 

 

  • Child 5: Later in 2012, DD became pregnant again. The pregnancy was once again concealed from the professional agencies (including social workers from the adult and child services) which were endeavouring to work with the parents. The parents withdrew from engagement with professionals, and on occasions refused entry to their home. In mid-July, an unannounced visit by child care social workers was made to the home; BC declined their request to enter. Following protracted negotiations (involving discussion of police attendance to obtain access to DD), BC relented. On entering the property, DD was seen attempting to breast feed a baby (Child 5: female), swaddled in a dirty pillow case soiled with blood. The home was dirty; there was no sign of baby clothes, blankets, bottles, nappies or anything suggesting preparation for a child. DD was evasive when asked where the afterbirth was; there was concern that it may not have been delivered. DD looked unwell. BC handed Child 5 to the social workers, and gave permission to have her examined in hospital.

 

One can understand why any professional involved with DD would be concerned about her pregnancy and anxious to ensure that the baby is not born at home without medical supervision. It appears that DD and BC withdrew from medical and other services during this pregnancy

 

 

  • Between late February and early April, twenty-five social work visits were made to DD and BC’s home. Even allowing for the fact that on occasion DD will undoubtedly have been out, the social workers were not able to obtain access on even a single occasion. Occasionally, DD and BC have been sighted at the windows within the property, but have not responded to knocking at their front door. On one occasion, BC responded to the knocking by telling the visitors (through the locked door) that DD was “not pregnant“; DD was heard shouting in the background.

 

 

 

  • Given the level of concern, and belief in the advancing pregnancy, the Adult social services sought and obtained a warrant under section 135 Mental Health Act 1983 which authorised them to enter, with police presence and if need be by force, DD’s home, and, if thought appropriate, to remove her to a place of safety with a view to making an application in respect of her under Part II of the Mental Health Act 1983. Mr. D told me that there was reasonable cause to suspect that DD (a person believed to be suffering from mental disorder) was being kept otherwise than under proper control.

 

 

 

  • On 8 April 2014, the warrant was executed. On entering the flat that evening (17:00hs), there was an overwhelming smell of cats’ urine; the home was dirty and dingy. DD and BC were initially distressed, but (according to Mr. D and Mrs. C, who were both present) the situation was soon calmed, and DD was conveyed to a mental health unit for full mental and physical assessment. DD co-operated with a physical examination, an ultrasound scan, and blood sampling.

 

 

 

  • Following this assessment, fifteen further attempts were made to see DD at home. On none of those visits did DD or BC answer the door. DD did not attend pre-booked ante-natal appointments on 23 April, or on 21 May 2014; transport had been offered and provided. The letter reminding her of the ante-natal appointment was returned with a message on the envelope ‘return to sender, moved away‘.

 

 

 

  • To add context to this level of ante-natal intervention, NICE (National Institute for Health and Care Excellence) Guidelines recommend nine appointments for a high-risk pregnancy (which this is – see §97(vii) below); by this time, DD had had one appointment, and only (as is apparent from the history above) when she had been removed from her home following court order.

 

 

 

The Trust (ie the hospital and doctors at the hospital) made an application to the Court of Protection for a number of declarations about DD

 

i) DD lacks capacity to litigate in respect of the issues below;

ii) DD lacks capacity to make decisions in respect of whether to undergo a caesarean section and to make decisions generally about her care and treatment in connection with her impending labour, including the place and mode of delivery of her unborn child;

iii) It is in DD’s best interest to undergo a planned caesarean section in hospital with all necessary ancillary treatment;

iv) DD lacks capacity to consent to be subject of an assessment of her capacity to make decisions in relation to contraception (by way of sections 48 or 15 Mental Capacity Act 2005);

v) It is in DD’s best interest to be subject of a one day assessment of her capacity to make decisions about contraception;

vi) The Applicants may take such necessary and proportionate steps to give effect to the best interests declarations above to include, forced entry, restraint and sedation.

 

The Court of Protection were not dealing with, were not asked to deal with, and have no powers to deal with, what would happen to DD’s baby once it was born. The Judge,  Cobb J, simply says this

I exhort the Council to make sure that any application for orders fully engages DD, so that she can be represented by her litigation friend, the Official Solicitor. It is plainly important, in DD’s best interests, that plans for the baby are formulated and presented to her in a way which engages her to the fullest extent.

 

 

The Court assessed DD’s capacity.  (I will set out now, because it is an issue that continues to trouble some practitioners in this field and also campaigners, that although DD was represented through the Official Solicitor, the Official Solicitor had not met with her or taken her views on the issues and did not in effect mount a challenge or defence to those declarations. The Official Solicitor’s role is to make representations to the Court about what they consider to be in DD’s best interests – in some cases that means agreeing or not opposing the declarations sought, in some cases it means a very robust opposition to the declarations sought, but there is no general principle that the Official Solicitor ought to argue against state intervention and FOR autonomy for people like DD)

 

The peculiar issue in relation to capacity was that DD in five sets of care proceedings had been adjudged to have capacity to litigate, and had NOT been represented through the Official Solicitor. That would be fairly unusual in a case where the Court was contemplating surgery against the person’s will

 

  • I am satisfied that “all practicable steps” (section 1(3) MCA 2005) have been taken to help DD to make a decision as to litigation, and mode of delivery, but that such steps have been unsuccessful – not just because of the low level of co-operation, but because she has displayed such rigid and unshakeable thinking (‘mind-blindedness’) about the information provided.

 

 

 

  • Her decision-making is undoubtedly “unwise“, but it is not, in my judgment, just “unwise“; it lacks the essential characteristic of discrimination which only comes when the relevant information is evaluated, and weighed. I am satisfied that in relation to each of the matters under consideration her impairment of mind (essentially attributable to her autistic spectrum disorder, overlaid with her learning disability) prevents her from weighing the information relevant to each decision. While anxious that in the past DD has ostensibly participated (albeit in a limited way) in public law proceedings without any finding of the court as to her capacity to do so (which causes me to reflect yet more carefully on the issue under consideration now) I must consider the issue with regard to this particular piece of litigation (Sheffield Crown Court v E & S – supra).

 

 

 

  • Moreover, on the evidence laid before me, there is reason to believe (section 48) that she lacks capacity in relation to whether to participate in an assessment of her capacity to decide on future contraception.

 

 

 

  • In these conclusions, I am fortified by the fact that the Official Solicitor, on DD’s behalf, does not seek to persuade me otherwise.

 

 

 

  • These conclusions can be drawn as declarations reached pursuant to section 15 Mental Capacity Act 2005, save for the conclusion in relation to capacity to consent to an assessment of decision-making relevant to future contraception, which will be drawn as a declaration under section 48 MCA 2005

 

 

 

The Court then went on to consider, what the best interests of DD required, given that she lacked capacity to make her own decision. The analysis that Cobb J undertakes of the various options for delivery of the child, the pros and cons of each and the balancing exercise is the best of these that I have seen, and I hope that this sort of root-and-branch analysis becomes more widely used in these cases. He reaches the conclusion that caesarean section is the best course of action, and makes the declarations that would allow the hospital to carry out that surgical procedure.

 

We then move to the headline item – in all of the other C-section Court of Protection cases the expectant mother has been in hospital, here she is at home. How is she to be conveyed to hospital?

 

Achieving the admission to hospital: Use of reasonable force & deprivation of liberty

 

  • I am conscious that steps may need to be taken to give effect to the decision which I make, if compelled attendance at hospital is required (for caesarean or induced vaginal delivery) in the face of DD’s objection. The extent of reasonable force, compulsion and/or deprivation of liberty which may become necessary can only be judged in each individual case and by the health professionals.

 

 

 

  • On two recent occasions forcible entry has had to be made to DD’s home in order to achieve some form of assessment: once with the authorisation of the lay justices (section 135 MHA 1983: 8 April 2014) and once pursuant to an order of Pauffley J (section 48 MCA 2005: 19 June 2014).

 

 

 

  • Any physical restraint or deprivation of liberty is a significant interference with DD’s rights under Articles 5 and Article 8 of the ECHR and, in my judgment, as such should only be carried out:

 

 

i) by professionals who have received training in the relevant techniques and who have reviewed the individual plan for DD;

ii) as a last resort and where less restrictive alternatives, such as verbal de-escalation and distraction techniques, have failed and only when it is necessary to do so;

iii) in the least restrictive manner, proportionate to achieving the aim, for the shortest period possible;

iv) in accordance with any agreed Care Plans, Risk Assessments and Court Orders;

 

  • On each previous occasion, after DD’s (and BC’s) understandable initial distress at the intrusion, DD has been calm and co-operative; BC less so. The presence of the police has not aggravated the situation; on the contrary, I was advised by Mr. D that DD sees the police as neutral and therefore helpful in maintaining peace. DD does not see the police as a risk; indeed, it was felt, the presence of police (in fact, uniformed police underline for the concrete thinker the visual confirmation of authority) creates a brake on her anxiety, anger, frustration and fear. The police add a ‘message’ to DD that the situation is ‘serious’ (according to Mr D) and has the effect of calming DD and BC.

 

 

 

  • In fulfilment of the plan as a whole, it is critical that the particular team of trained and briefed professionals is involved.

 

 

 

  • I recognise that sedation may be needed to ensure that DD does not cause herself harm at the time of the transfer to, and in-patient stay, in the hospital. General anaesthesia is likely to be necessary in my judgment to facilitate the caesarean section given the risks to herself if she were to interfere with the surgical procedure, or choose to be non-compliant with localised anaesthetic.

 

 

 

Finally, the Trust were proposing that DD be told of the general plan – that she would be taken to hospital and undergo a C-section, but not detail as to the date. The Judge considered the pros and cons of this here

 

 

  • The Applicants propose that neither DD nor BC should be advised of the date planned for the caesarean procedure, but should be provided with partial information: they are aware of this hearing, and it is proposed that they should be informed of the Applicants’ plan to arrange a caesarean section for her.

 

 

 

  • It should be noted that neither DD nor BC were advised in advance of the date of the localisation scan which took place two weeks ago.

 

 

 

  • There are plainly risks associated with providing DD and BC with full information (i.e. about the planned date), and, in the alternative, providing them with partial information. The professionals consider that the risks associated with providing them with full information are greater given DD’s likely raised stress and anxiety levels as the date approaches; this may have a serious impact on her mental health. This concern is underlined by the fact that she was adamant that she should not have her planned caesarean at the time of the birth of Child 2 until the exact due date.

 

 

 

  • There is a further risk that in advising DD and BC of the date of the caesarean, that they may seek to leave their home, and disappear. This in itself would create risks to DD, in that:

 

 

i) There is no guarantee that the specialist team local to her current home which has been identified to look after DD on the appointed date could be assembled on short notice, once DD and BC have been located;

ii) Health professionals in any new area would be unfamiliar with her situation, and less well equipped to deal with her, and her particular needs;

iii) Managing a safe transition from the community to hospital may be less easy or (if she is located in a public place) dignified.

iv) If she attempts a vaginal delivery at home (particularly any temporary home which is unfamiliar), she may be putting herself at additional risk.

 

  • If DD and BC are given partial information (omitting specific dates) the levels of anxiety are likely to be lessened and DD may have difficulty relating the information to herself given her autism spectrum disorder. This condition may make it difficult for DD to see how the information relates to her until concrete actions take place. Recent experience (8 April and 19 June) has demonstrated that while DD has been initially distressed, this reduces quite quickly and effectively using skilled de-escalation techniques.

 

 

 

  • I acknowledge that giving full information to DD and BC about the plans for the delivery of the baby would most fully observe their Article 8 and Article 6 ECHR rights.

 

 

 

  • However, in my judgment the provision of only partial information (i.e. that the plan is for a caesarean section, but not giving her a date) is a justified interference with her potent Article 8 rights on the facts of this case, as necessary in the interests of her health and the health of her unborn child. Moreover, I am of course satisfied that her Article 6 rights have been observed by her full and effective representation – with the fullest opportunity for her engagement – in this hearing

 

 

 

These cases, as with so much that falls to be decided by High Court judges, are extraordinarily difficult, with there being no perfect answer. Nobody can, or indeed should, feel wholly comfortable with a deeply vulnerable woman being removed from her home by police officers and taken to a hospital to have surgery performed on her against her will; not least because one can see that her prospects of remaining together with the baby are not strong given the previous history. It makes me feel squeamish and uncomfortable. But when one contemplates the alternative – that two parents of such limited abilities try to deal with a home birth unsupervised and a labour that has medical complications, given that they previously tried to use barbecue tongs as forceps and injured child 3’s head during the process, that feels terrible too.  I don’t know how we get these decisions right and do them fairly, but it would be hard for anyone who takes the time to read Cobb J’s judgment carefully to think that he didn’t try his utmost to make this difficult decision fairly.

 

My one caveat is that I think there should be someone in Court who is advocating for non-intervention, and for DD’s autonomy. If the Court don’t consider that DD’s autonomy can outweigh her wider interests and safety, then so be it, but I would feel better if someone was really arguing ‘fearlessly and without favour’ for the State to leave this woman alone. That way, all of the competing options are rigorously argued out and tested. Otherwise, that is left entirely on the shoulders of a Judge – and we may not always be as fortunate to have a Judge like Cobb J, who has the mindset, the knowledge and in this case the time, to vigorously consider the counter arguments that are not being made by the advocates.

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