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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.

Court rules on termination within care proceedings

 

Any case involving a termination is sad – setting aside any pro-choice v pro-life debates which are beyond my scope any decision about a termination has an enormous emotional impact on everyone involved and one simply can’t say how extensive those ripples will be.

 

In this case, the expectant mother was a 13 year old child, who was herself the subject of care proceedings. The father of the unborn baby was just 14.  This case was heard by the President of the Family Division – Re X (A child) 2014.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1871.html

The assessments of the expectant mother’s capacity showed that she was not Gillick competent  – that is, she wasn’t someone who could make the informed decision for herself whether to go ahead with surgery or not. If she had capacity, it is highly unlikely, as the President comments, that treating doctors would either try to undertake an abortion against her wishes (in fact, they would be sued to forever and back if they did) or refused to perform the operation.  As she did not have capacity to make that decision, it was something that the Family Court could give guidance on.

 

The President points out in the judgment something that often gets overlooked – there isn’t actually a ‘right to choose’ abortion in English law (technically and legally, even if in practice it almost always comes down to a choice), abortion is only a lawful surgical procedure in the narrow constraints of the legislation

 

 

 

 

  • section 1(1) of the Abortion Act 1967  provides as follows:

“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith –

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman … ; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; …

The Family Court has no power to compel doctors to perform the surgery, or to determine whether those criteria are satisfied – the decision on both of those matters rests entirely with the doctors.

  • In a case such as this there are ultimately two questions. The first, which is for the doctors, not this court, is whether the conditions in section 1 of the 1967 Act are satisfied. If they are not, then that is that: the court cannot authorise, let alone direct, what, on this hypothesis, is unlawful. If, on the other hand, the conditions in section 1 of the 1967 Act are satisfied, then the role of the court is to supply, on behalf of the mother, the consent which, as in the case of any other medical or surgical procedure, is a pre-requisite to the lawful performance of the procedure. In relation to this issue the ultimate determinant, as in all cases where the court is concerned with a child or an incapacitated adult, is the mother’s best interests.

 

  • An important practical consequence flows from this. In determining the mother’s best interests this court is not concerned to examine those issues which, in accordance with section 1 of the 1967 Act, are a matter for doctors. But the point goes somewhat further. Since there can be no lawful termination unless the conditions in section 1 are satisfied, and since it is a matter for the doctors to determine whether those conditions are satisfied, it follows that in addressing the question of the mother’s best interests this court is entitled to proceed on the assumption that if there is to be a termination the statutory conditions are indeed satisfied. Two things flow from this. In the first place this court can proceed on the basis (sections 1(1)(a) and (c)) that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, to the life of the pregnant woman or of injury to her physical or mental health or (section 1(1)(b)) that the termination is necessary to prevent grave permanent injury to her physical or mental health. Secondly, if any of these conditions is satisfied the court is already at a position where, on the face of it, the interests of the mother may well be best served by the court authorising the termination.

 

  • There is another vitally important factor that in many cases such as this may well end up being determinative and which in this particular case is, in my judgment, determinative: the wishes and feelings of the mother.

 

Of course, given that the mother does not have capacity (and if she did, the family Court would not be getting involved at all) she CANNOT CONSENT to the surgery, but the President draws an important distinction between consenting to a course of action and accepting that course of action

 

 

  • This court in exercise of its inherent jurisdiction in relation to children undoubtedly has power to authorise the use of restraint and physical force to compel a child to submit to a surgical procedure: see Re C (Detention: Medical Treatment) [1997] 2 FLR 180 and Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083. I say nothing about how this power should appropriately be exercised in the case of other forms of medical or surgical intervention. In the case of the proposed termination of a pregnancy, however, the point surely is this. Only the most compelling arguments could possibly justify compelling a mother who wished to carry her child to term to submit to an unwanted termination. It would be unwise to be too prescriptive, for every case must be judged on its own unique facts, but I find it hard to conceive of any case where such a drastic form of order – such an immensely invasive procedure – could be appropriate in the case of a mother who does not want a termination, unless there was powerful evidence that allowing the pregnancy to continue would put the mother’s life or long-term health at very grave risk. Conversely, it would be a very strong thing indeed, if the mother wants a termination, to require her to continue with an unwanted pregnancy even though the conditions in section 1 of the 1967 Act are satisfied.

 

 

 

  • A child or incapacitated adult may, in strict law, lack autonomy. But the court must surely attach very considerable weight indeed to the albeit qualified autonomy of a mother who in relation to a matter as personal, intimate and sensitive as pregnancy is expressing clear wishes and feelings, whichever way, as to whether or not she wants a termination.

 

 

 

  • There appears to be no clear authority on the point in this particular context (the cases in point all concerned other forms of surgical intervention) but counsel for X’s mother helpfully reminded me of something Lord Donaldson MR said in In Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, 79, which is in line with the approach I adopt:

 

 

“Hair-raising possibilities were canvassed of abortions being carried out by doctors in reliance upon the consent of parents and despite the refusal of consent by 16- and 17-year-olds. Whilst this may be possible as a matter of law, I do not see any likelihood taking account of medical ethics, unless the abortion was truly in the best interests of the child. This is not to say that it could not happen.”

 

  • In his oral evidence (see below) the Consultant in Obstetrics and Gynaecology captured the point, as it seemed to me, very compellingly. He said, and I agree, that it would not be right to subject X to a termination unless she was both “compliant” and “accepting”. Both, in my judgment, are important. Only the most clear and present risk to the mother’s life or long-term health – neither even hinted at in the present case – could justify the use of restraint or physical force to compel compliance. So the mother in a case such as this must be compliant. But mere acquiescence – helpless submission in the face of asserted State authority – is not enough. “Consent”, of course, is not the appropriate word, for by definition a child of X’s age who, like X, lacks Gillick capacity, cannot in law give a valid consent. But something of the nature of consent or agreement, using those words in the colloquial sense, is required. The Consultant’s word “accepting” in my judgment captures the nuance very well.

 

When the case had first been set up for hearing, the expectant mother X had been opposed to  a termination, and all advocates had prepared on that basis, but by the time the case got to Court her position had changed to wanting a termination.

 

This next aspect is novel – I don’t think a Judge has ever had to undertake this exercise before.  Part of what X had in her mind was whether, if she gave birth to the baby, whether there would be care proceedings and what the likely outcome of those proceedings would be.  That’s a fair question on her part and it clearly would have a significant impact on her feelings. As a matter of law, the Court can’t consider an application in care proceedings until the baby is born, and even a decision at interim stage (whether the baby could be with mother immediately after birth) would only be an interim decision and the final outcome would not be known until the baby if born was about six months old. So a definitive answer was not possible – all that could be attempted was an indication of what seemed likely. Many Judges might have hidden behind the legal difficulties of expressing a view on this, but the President attempted to answer the very real and very human question.

 

One factor which it did seem important to take into account was the likelihood or otherwise of X being able to keep her baby if there was no termination. This required me, necessarily on the basis of incomplete information, to predict the outcome, not merely of the care proceedings already on foot in relation to X but also of the care proceedings in relation to her child which almost inevitably would be commenced after the birth. The need for a judicial view on a point which might be seen to be pre-judging the care proceedings was, in my judgment, inescapable. My view, which I expressed at the hearing and which was embodied in my order (see below) was that there was “very little chance” that X would be able to keep her baby if it was born. Having done so, however, it seemed to me that I should not be further involved in the care proceedings, so I recused myself.

 

[For non-lawyers, 'recused myself' means that the President had ruled that he would not be involved in any of the care proceedings involved in X's baby IF she did go on to have the baby. It wouldn't be fair for him to hear the case having indicated that X had very little chance of being able to keep her baby.  We don't know from this judgment any of the background or why the Judge would have given that indication - there are things that the Judge saw and read and heard that we have not]

 

The President made a raft of orders, that in effect meant that his indication should be explained to X, and that IF she was in agreement with a termination the doctors would be able to proceed if they wished to (but that if she did not agree, it would not take place).

 

Let’s find you a nice young man

The law on capacity and sexuality is developing swiftly at the moment, and throwing up some really difficult decisions.

In A Local Authority v TZ (no 2) 2014, the Court of Protection went on from its first judgment that the man, TZ, had the capacity to consent to sexual intercourse. TZ was homosexual, so one of the three principles (does the person understand the mechanics, the risk of STDs and the risk of pregnancy) doesn’t apply.

 

http://www.bailii.org/ew/cases/EWHC/COP/2014/973.html

The issue that then arose was whether TZ had capacity to make safe choices about people he might chose to have sex with.

 

 

  • Accordingly, the questions arising here are:

 

 

 

(1) whether TZ has the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe, and, if not, 

(2) whether he has the capacity to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations.

 

[I personally bear in mind that almost every parent ever would have wanted at some point and even for a brief flickering moment, the right to veto their child's choice of boyfriend or girlfriend, but we have to let them make their own mistakes in life. There are certain people who like "bad boys", sometimes they grow out of it, sometimes they don't. Most teenagers would prefer someone that their parents disapproved of   -  John Bender in the Breakfast Club would be no parents choice for their child, but the parents choice of Brian isn't going to fly. But this is a tricky situation - TZ clearly had some vulnerabilities. The Judge carefully reminded himself of the tension between being protective and giving people freedom to make what others might see as poor choices]

bender

 

John  Bender  (bad boy alert)

 

Parent's choice, lovely Brian

Parent’s choice, lovely Brian

  • In addressing the issues of capacity in this case, I bear in mind a number of other points of law.

 

 

 

  • Importantly, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether, at the date on which the court is considering capacity, the person lacks the capacity in issue.

 

 

 

  • Next, as Macur J (as she then was) observed in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” The question is whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made” (ibid, paragraph 58).

 

 

 

  • Furthermore, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other professionals who have experience of treating and working with P, the subject of the proceedings, and sometimes from friends and family and indeed from P himself.. As Charles J observed (in the analogous context of care proceedings) in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. Thus, when assessing the ability of a person to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert.

 

 

 

  • Finally, I reiterate the further point, to which I have alluded in earlier decisions, including PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam) and CC v KK [2012] EWHC 2136 (COP). In a case involving a vulnerable adult, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.

and later

 

 

  • In this context, as so often, the way forward is illuminated by observations of Munby J, as he then was, on this occasion in Re MM (An Adult) [2007] EWHC 2003 (Fam). In that case (decided under the inherent jurisdiction), the Court was concerned with the approach to be adopted in a case of a person who had capacity to consent to sexual relations but lacked the capacity to make decisions about contact with a long-term partner. In such circumstances, Munby J held that “the court … is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk” (paragraph 119).

 

 

 

  • The following much-quoted paragraph is particularly relevant:

 

 

“A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”

 

 

I won’t get heavily into the particular facts in the case, they are all set out in the judgment should you want to read them – there was quite a body of professional opinion that TZ lacked the skills to weigh up whether someone was a safe person to approach or have sex with.

 

The Court’s decision on capacity is set out below

 

  • I find on a balance of probabilities that TZ does not have the capacity to decide whether a person with whom he may wish to have sexual relations is safe. I base that finding on the detailed assessments of TZ carried out by JS and Dr X, both of whom have had an opportunity to assess him over a period of time. These assessments include extensive conversations with TZ in which he has himself acknowledged that he lacks this capacity. In particular, while he has the ability to understand and retain information, he lacks the ability to use or weigh up the information, including the ability to assess risk and, in the language of s. 3(4), to understand the reasonably foreseeable consequences of the decision. This is, in my judgment, a good example of the distinction identified in paragraph 4.30 of the Code of Practice between, on the one hand, unwise decisions, which a person has the right to make, and, on the other hand, decisions based on a lack of understanding of risks and the inability to weigh up the information concerning a decision.

 

 

 

  • I have also borne in mind s. 1(2) – that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Having regard to Dr X’s advice, however, I consider that there is no immediate prospect of extending TZ’s capacity via a programme of education. Such a programme must, of course, be an integral part of the best interests care plan which would be put in place as a result of a declaration of incapacity.

 

 

 

  • The evidence therefore establishes that he lacks the capacity to decide whether or not any individual with whom he may wish to have a sexual relationship is safe. As to the second capacity in issue, JS concluded in her report that he did have the capacity to make decisions regarding his care and support. In oral evidence, however, JS qualified this opinion, saying that TZ can understand why he needs support “if he is in the right frame of mind”, and that his capacity in this respect is variable. She said that sometimes he is more open about taking things on board than at other times. Dr X concluded that TZ lacked this capacity. He thought that TZ’s current compliance with support did not mean that he understands the need for that support and thought it quite likely that at some stage he would ask a support worker to leave.

 

 

 

  • Notwithstanding the view set out in JS’s written assessment, I conclude after close analysis that TZ does not have the capacity to decide what support he requires when having contact with an individual with whom he may wish to have sexual relations.

 

 

 

  • In reaching these conclusions as to capacity, I have reminded myself, again, of the need to avoid what could be called the vulnerable person’s protective imperative – that is to say, the dangers of being drawn towards an outcome that is more protective of the adult and thus fail to carry out an assessment of capacity that is detached and objective. I do not consider that I have fallen into that trap in this case.

 

 

But having established that TZ lacks that capacity, the Court then have to approach any declarations with a view to what is in TZ’s best interests

 

 

 

 

“First, P’s wishes and feelings will always be a significant factor to which the court must pay close regard …. Secondly, the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific …. Thirdly, in considering the weight and importance to be attached to P’s wishes and feelings, the court must … have regard to all the relevant circumstances … [which] will include … (a) the degrees of P’s incapacity … (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that [his] wishes and feelings are not being given effect to … (d) the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and, pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in [his] best interests.”

 

  • Mr. McKendrick further submits, rightly, that in applying the principle in s.1(6) and generally, the Court must have regard to TZ’s human rights, in particular his rights under article 8 of ECHR to respect for private and family life. As the European Court of Human Rights observed in Niemitz v Germany (1993) 16 EHRR 97 at para 29, “private life” includes, inter alia, the right to establish relationships with other human beings. This has been reiterated on a number of occasions, see for example Pretty v UK (2002) EHRR 1 at paragraph 61 and in Evans v UK (2008) 46 EHRR 34 at paragraph 71. There is a positive obligation on the state to take measures to ensure that his private life is respected, and the European Court has stated that “these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves”: Botta v Italy (1998) 26 EHRR 241 paragraph 33.

 

 

 

  • These principles plainly apply when considering what steps should be taken to protect someone, such as TZ, who has the capacity to consent to sexual relations but lacks both the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual. In such circumstances, the state through the local authority is under a positive obligation to take steps to ensure that TZ is supported in having a sexual relationship should he wish to do so.

 

 

 

  • In passing, it should be noted that this is consistent with the provisions of the United Nations Convention on the Rights of Persons with Disabilities, (ratified by the UK in 2009 although not yet incorporated into English law) and in particular article 23 which requires states to “take effective and appropriate measures to eliminate discrimination against persons with in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”.

 

 

 

  • In addition, the state is under an obligation to take steps to protect TZ from harm.

 

How to apply those principles to TZ’s case

 

  • In the light of these principles and dicta, what steps should this court now take in TZ’s best interests?

 

 

 

  • On behalf of the Official Solicitor, Mr. McKendrick asserts that the challenge for the parties and the court is to develop a best interests framework which permits TZ sufficient autonomy of decision-making and respects his right to a private life whilst balancing the need to protect him from harm. He identifies three options: (1) take no best interests decision at this stage but react should TZ find himself in a situation when he is the subject of harm or at risk of harm; (2) require the applicant local authority to draft a care plan and submit it to the court for approval; (3) appoint a welfare deputy to make decisions on TZ’s behalf. Neither party is advocating for the first option. Both parties agree that the court should direct the local authority to file a care plan. The issues are, first, as to the contents of that plan and, secondly, whether a welfare deputy should be appointed.

 

 

 

  • The local authority has filed a draft care support plan. The Official Solicitor has made a number of observations about that plan. There is considerable common ground between the two parties, but some differences remain.

 

 

 

  • What follows are some proposals by the court for the sort of measures that should be included in the plan. Decision-making for incapacitated adults should, as far as possible, be a collaborative exercise. The observations as to the contents of the plan should be seen as part of that process.

 

 

 

  • I propose that the plan should contain the following elements: (a) basic principles; (b) education and empowerment; (c) support; (d) intervention; (e) decision-making. Under this last heading, I shall consider the local authority’s application for the appointment of a deputy.

 

 

(a) Basic principles

 

  • The basis for the plan is uncontroversial and can be summarised as follows.

 

 

 

(1) TZ lives at H Home. In due course, he may move to a step-down facility and, in the long run, into supported living. 

(2) He will have available to him a number of hours of 1 : 1 support every week. Currently that is fixed at 32 hours.

(3) He has capacity to consent to and enter into sexual relations. He has the right to establish relationships with other human beings and wishes to meet other men with whom he may have sexual relations.

(4) He lacks the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual.

(5) The local authority and the Court are under a positive obligation to ensure that he is supported in having a sexual relationship should he wish to do so, but also to ensure, as far as possible, that he is kept safe from harm.

(6) The purpose of the plan is therefore to identify the support to be provided to assist him in developing a sexual relationship without exposing him to a risk of harm.

 

You can see, hopefully, that the overall goal of the plan is to keep TZ safe whilst teaching him the skills he will need to keep himself safe – he is not prevented from forming relationships with other men, nor indeed from having sex with them; it is more that he is to be assisted in making those decisions.

 

Getting down to brass tacks though, what are professionals supposed to do if TZ meets someone he is attracted to?

 

 

  • Mr McKendrick submits, and I agree, that TZ must have some “space” to make decisions for himself, even if this involves making mistakes, to assist him to learn (as far as he can) from the consequences of those decisions. Mr Dooley indicated that the local authority agreed that learning through experience is critical for TZ.

 

 

 

  • Mr McKendrick further submits, and I accept, that, should TZ meet a stranger, he is entitled to have private time with that person and support staff should intervene only if there is an identified risk of that person being abusive towards TZ. I agree with the Official Solicitor that the local authority and its support staff cannot interview or ‘vet’ anyone with whom TZ wishes to communicate and cannot assume that everyone he speaks to is likely to present a risk of abuse. Mr Dooley stated that the local authority’s position is that, if there is a problem in these circumstances, there will need to be a risk assessment to determine whether intervention is required. Having identified that intervention is required, the next step would be to consider the least restrictive intervention necessary to ensure that TZ is safe.

 

 

 

  • In the event that TZ decides he wishes to spend the night with someone, the care plan must provide that a private space can be made available. H Home has now indicated that he will be permitted to have a visitor to stay subject to the proviso that any visitor would have to be subject to safeguarding checks to protect other residents. A similar provision would be made in the event that TZ moved to a step-down facility.

 

 

 

  • If TZ meets someone and develops a relationship, or if he says he wishes to leave H Home and cohabit with another person, a specific capacity assessment will be required to determine whether he has the capacity to make a decision about contact with that person. If the outcome is that he has capacity, the sexual relationship should be facilitated, unless it is concluded that there is a significant risk of harm. If the assessment concludes that he lacks that capacity, or that there is a likelihood that he will suffer significant harm as a result of a relationship, a further application will have to be made to the court. If the court accepts that he lacks capacity, a best interests decision will then be made. If the court concludes that he has capacity, but that he is at risk of harm, it may be that the court would resort to protective powers under its inherent jurisdiction as to vulnerable adults. At all stages, of course, TZ must be assisted to participate in the decision-making process.

 

 

It is not the role of the Local Authority to ‘vet’ TZ’s partners or potential partners, nor do they have a role of veto

 

 

  • the plan must clearly delineate the circumstances in which care workers may intervene to protect TZ and the steps they are entitled to take when intervening.

 

 

 

  • On behalf of the Official Solicitor, Mr McKendrick submits, and I accept, that it is not the role of the local authority staff to vet TZ’s sexual partners. They must not deny him private time with a proposed sexual partner simply because they consider that partner is unsuitable, unless there is a clearly identified risk that the proposed partner poses a real risk of abuse to TZ during their contact. As the Official Solicitor submits, the assessment of abuse must be rigorous and evidence-based, or, adopting the phrase used by Munby J in Re MM, (supra) “pragmatic, common sense and robust”. As the Official Solicitor points out, capacitous adults also run the risk of abuse and harm. The adults protecting TZ must be given the tools to assist him, because of his vulnerabilities, but they cannot act in his best interests by attempting to eliminate all risks of harm. (“What good is making someone safe if it merely makes them miserable?”)

 

 

 

  • As JS has set out in her draft support plan, if TZ says he wants to go off with someone he has just met, the care workers would try to dissuade him, reminding him of the staged approach to new relationships previously discussed and agreed. In the event that he refused to listen to support workers in those circumstances, and where there were concerns regarding the risk of harm, the care worker involved should immediately alert management, who would in turn ensure that legal representatives were informed. A decision would then be taken as to whether the police should be informed, and/or whether an application should be made to the Court of Protection.

 

There was a mental health case in the last year, where a Judge set down a seventeen point plan of things that ought to be considered by a hospital before deciding that a patient was so dangerous that he needed to be transferred to a safer hospital, and the Court of Appeal ended up observing that if you get a Judge to draw up a model, he or she invariably draws up a very judicial/lawyery one which attempts to dot every i, and cross every t, but reality doesn’t always allow for that.  I think that this is a damn good attempt to put a framework in place that tries to give TZ freedom and keep him safe and they are laudable aims – I am certain that I could not have done any better.  But it does bring up the mental picture of a man smiling at TZ in Starbucks and staff members thumbing through the judgment to initiate “Phase Four of the plan”

 

Do you suspect that the staff will be likely to be on low alert for a Brian, but be contemplating intervention for the bad-boy type?

 

Another C-section case

I know that these Court of Protection decisions, authorising a hospital to undertake interventions / treatment without a patient’s consent are of interest to my readers, following on from the case with the Italian mother that attracted considerable notoriety in December 2013.

This one, Re P 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/4581.html

once again involved a mother said to have mental health problems (rather than say a learning difficulty) . The media were present, and save for being able to identify the mother or the Trust, the Judge was amenable to the details of the case being made public.

If you aren’t aware, there is broadly a two stage test – firstly does the patient have capacity to take the decision for themselves (and if they do, they are entitled to make a decision which flies in the face of medical advice or even common sense) – and secondly, if not, the Judge has to apply a best interests decision – taking into account all of the circumstances and what is known about their wishes, what is in the patient’s best interests.

As a matter of particular interest in this case, the Judge raised an issue which I have debated with people before. As you may be aware, the ‘best interests’ decision relates to the patient themselves, not in the health of the child. Unlike Children Act cases where the child’s welfare is paramount, the unborn child has no legal rights to take into account. The decided C-section cases have always been that the operation avoids a risk to the mother’s health as a result of her medical situation, and the fact that a C-section might be the safest way for the child to be born has not, thus far come into the decision-making process.

The debate therefore is whether, when taking into account the mother’s best interests, one can take into account that it would be in her best interests and in accordance with her wishes if the baby were to be delivered safely and well – this being something that any mother would want for her baby.

The Judge decided that it absolutely could be taken into account.

Next, there is no doubt at all that it would be in the best interests of Mrs. P for her baby to be safely delivered. The court cannot be concerned with the interests of the unborn child, but can, and does, have regard to the extremely adverse effect on Mrs. P if unnecessarily her child was not born safely or was born with some avoidable disability as a result of a lack of obstetric care which might have been given. Furthermore, the proposal that the Trust makes offers the best chance of a secure labour and delivery for Mrs. P if it is approached in a planned way rather than awaiting the chance moment.

 

Therefore, although this decision was taken primarily on health grounds for the mother, the door is possibly opened in another case for the decision to be primarily about safely delivering the child.

The other aspects of this case were 1) that the mother was not merely not consenting to the operation (although she did not have capacity to consent), but actively hostile to it. And that was a factor that had to be taken into account when deciding the best interests element and 2) that at the time of the application the mother was described as being calm and lucid, so the declaration sought was to ensure that if things deteriorated during labour, the hospital could take action.

  The current situation is that Mrs. P is in hospital awaiting the arrival of her baby. She is relatively calm and accepting of the idea of being induced as described. However, that may change if she was to become agitated during her labour, as she has been in the recent past. There is a good chance that she will be able to give birth by normal means. That is the outcome which everybody hopes for. However, if that does not happen it is said, and I so find, to be in her interests for emergency measures to be taken for the benefit of her physical and mental health by means, as a last resort, of a Caesarean section.

It might be helpful, given that the reported cases on C-section are somewhat slight on guidance over and above the standard Mental Capacity Act tests, and the St Georges case (suggesting that the patient also ought to be helped by the Hospital to develop understanding to make an informed decision) predates the Mental Capacity Act for one of these cases to be appealed in the future. There’s perhaps not enough weight at present in these judgments as to the nature of the act being authorised and its invasiveness and any sort of  guidance as to how serious the health risks ought to be before one performs the operation on a person who is not in a position to agree to it as a result of mental illness.

(Of course, the reality of these applications are that they are done swiftly, often as an emergency, and that after the C-section is performed, it can’t exactly be undone, so a later appeal is more academic than practical)

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