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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)

Incapacity cannot be deduced from isolated incidents of eccentric reasoning

The Court of Protection decision in Heart of England NHS Foundation Trust and JB 2014

http://www.bailii.org/ew/cases/EWHC/COP/2014/342.html

In this case, the Court of Protection, in the form of Mr Justice Peter Jackson, was faced with an application by the Hospital for a declaration that JB, who was not consenting to an amputation, lacked capacity to make that decision and that the surgery was in her best interests.

The case throws up some interesting issues, and I think it leads fairly neatly into my next piece, in suggesting that the Court of Protection may be moving away from a patrician “State knows best” view of cases towards a more “vulnerable people are owed some respect for their wishes and feelings” view.

You can’t really sum up the whole issue of capacity and declarations about capacity much better than the Judge does here – it is an excellent distillation of the balancing act that the Court has to perform

    1. The right to decide whether or not to consent to medical treatment is one of the most important rights guaranteed by law. Few decisions are as significant as the decision about whether to have major surgery. For the doctors, it can be difficult to know what recommendation to make. For the patient, the decision about whether to accept or reject medical advice involves weighing up the risks and benefits according to the patient’s own system of values against a background where diagnosis and prognosis are rarely certain, even for the doctors. Such decisions are intensely personal. They are taken in stressful circumstances. There are no right or wrong answers. The freedom to choose for oneself is a part of what it means to be a human being.

 

    1. For this reason, anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. In the absence of consent any invasion of the body will be a criminal assault. The fact that the intervention is well-meaning or therapeutic makes no difference.

 

    1. There are some who, as a result of an impairment or disturbance in the functioning of the mind or brain, lack the mental capacity to decide these things for themselves. For their sake, there is a system of legal protection, now codified in the Mental Capacity Act 2005. This empowers the Court of Protection to authorise actions that would be in the best interests of the incapacitated person.

 

    1. The Act contains a number of important general principles regarding capacity:

 

  • A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain: s.2(1).
  • A person must be assumed to have capacity unless it is established that he lacks capacity: s.1(2).
  • The question of whether a person lacks capacity must be decided on the balance of probabilities: s.2(4).
  • 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: s.1(3)
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision: s.1(4).
  • A lack of capacity cannot be established merely by reference to—

(a) a person’s age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity: s.2(3).

    1. These principles reflect the self-evident seriousness of interfering with another person’s freedom of action. Accordingly, interim measures aside, the power to intervene only arises after it is has been proved that the person concerned lacks capacity. We have no business to be interfering in any other circumstances. This is of particular importance to people with disadvantages or disabilities. The removal of such ability as they have to control their own lives may feel an even greater affront to them that to others who are more fortunate.

 

    1. Furthermore, the Act provides (s.1(6)) that even where a person lacks capacity, any interference with their rights and freedom of action must be the least restrictive possible: this acknowledges that people who lack capacity still have rights and that their freedom of action is as important to them as it is to anyone else.

 

  1. The temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.

 

By way of background to this case

    1. It concerns a 62 year old lady named JB. In earlier life, before she became too unwell, she undertook responsible work. She now lives with her twin sister. She is described by her Community Psychiatric Nurse as a strong willed woman who before her latest illness was good at needlework and art, enjoyed reading, attended her local church and took a lot of interest in community events.

 

  1. JB has a number of mental and physical disabilities. In her 20s, she was diagnosed as suffering from paranoid schizophrenia for which she has received treatment of various kinds, including during several involuntary hospital admissions, the last being in 2005. Since then she has been subject to what is now known as a Community Treatment Order. She lacks insight into her mental illness but accepts antipsychotic medication to avoid being returned to hospital.
    1. On New Year’s Eve, JB, having been unwell for several days, was readmitted and has remained in hospital since then. Her right foot was now entirely mummified and by the end of January it had come off, leaving an unresolved wound. Once again, the advice of the surgeons was that an amputation was necessary to allow the wound to be closed and to prevent it becoming infected. JB continued to refuse consent for this on some occasions, though she expressed agreement on others. Indeed, on 4 February she signed a consent form. Once again, doubts were expressed about her capacity, with no clear conclusion being reached. An example is the report of Dr B, who assessed JB on 14 January and concluded that “I am of the opinion that one needs to be certain of her capacity to consent or refuse the proposed intervention… However one cannot say with certainty she lacks capacity.” It was again agreed that an application would be made to the Court of Protection.

 

    1. In the meantime, discussion was taking place between surgeons, physicians and consultants in rehabilitation as to the nature of the amputation that would be most appropriate. At different times, it has been suggested that there should be amputation below the knee, through the knee or above the knee. Each option has important consequences in relation to the process of rehabilitation and the possibility of the patient walking in future. At the outset of this hearing the Trust’s position was that a through-knee operation should be approved, but this then changed to a recommendation for a below-knee operation. It is to be noted that the consent form signed by JB only two days before the proceedings began had covered an above-knee operation. The relevance of all of this is that the attempts to assess her capacity have taken place against a background of shifting medical opinion.

 

  1. On 6 February, the Trust applied to the court for a declaration that JB lacks capacity to make a decision about serious medical treatment. It sought a declaration that it would be in her best interests to have a through-knee amputation and for her to be sedated if she resisted.

21. I turn to the question of whether JB has the capacity to decide whether or not to consent to amputation of her right leg. The Trust says that she does not, relying upon evidence given by Dr O. The Official Solicitor says that she does, relying upon the evidence of Dr Pravin Prabhakaran, consultant psychiatrist, and Mr Jack Collin, consultant surgeon. Each of these witnesses has assessed JB during the past week and gave evidence during the hearing.

 

The issue of capacity was a critical one – the Judge makes it manifestly plain – if a person has capacity to consent to surgery and understands the pros and cons and risks and benefits to make an informed choice then they also have the capacity to say no. The surgery could not be performed on JB if she had capacity, because she has the right to say no.  IF she lacked capacity, then the Court would still have to consider whether the surgery was in her best interests (which does not mean simply substituting what a rational person might do in her shoes, but a consideration of what is in HER best interests)

Frankly, if surgeons came to me and said that they couldn’t agree on whether to cut my leg off above the knee, below the knee or through the knee, I wouldn’t consent to an amputation – I’d tell them to go away and come back when they know between themselves which it was.

The Judge makes a very good point about the process of assessing a person’s capacity

What is required here is a broad, general understanding of the kind that is expected from the population at large. JB is not required to understand every last piece of information about her situation and her options: even her doctors would not make that claim. It must also be remembered that common strategies for dealing with unpalatable dilemmas – for example indecision, avoidance or vacillation – are not to be confused with incapacity. We should not ask more of people whose capacity is questioned than of those whose capacity is undoubted.

 

Absolutely. Anyone faced with that decision would have had some emotional reaction to it, and some changes of heart, some denial, some over-optimism, some hopelessness. It is not fair to set the test of capacity as though the person had to approach the decision as though they were Mr Spock, coolly and dispassionately considering the pros and cons.

On assessing the conflicting medical evidence about capacity, the Judge broadly considered that those who claimed she did not have capacity were placing too high a test on JB  (underlining mine)

    1. At the hearing evidence was taken from Dr O and Dr Prabhakaran via a telephone conference call (so that the latter heard the former’s evidence), and from Mr Collin in person.

 

    1. Dr O has been JB’s community psychiatrist since October 2013. She has seen her three times: October, January and 12 February. She advises that JB lacks insight into her mental state and does not believe that she has a mental illness. This is not uncommon with schizophrenia. Dr O believes that in relation to her physical health, JB can understand and retain some but not all of what is being said by the doctors, but that her ability to weigh the information is compromised by her tendency to minimise and disbelieve what the doctors are telling her. She conceded that JB’s approach was possibly a normal reaction but said that she is not convinced that she had actually weighed all the evidence that she had been given. Nonetheless, over time JB has shown more belief and greater engagement, telling Dr O that she is frightened of surgery.

 

    1. Dr O advises that schizophrenia can have an effect on cognition but she was not in fact able to give any clear instance of irrationality in JB’s current thinking. She went so far as to say that the rejection of a through-knee operation was evidence of incapacity, although by the time she gave evidence this had been dropped as a plan.

 

    1. I note that as recently as 16 January, Dr O and Dr B expressed themselves unable to reach a conclusion as to whether JB had capacity and that during her assessment on 12 February, Dr O obtained only limited co-operation from JB.

 

    1. Dr Prabhakaran assessed JB on 9 and 12 February. She was more communicative with him than with Dr O, possibly because she regarded him as someone who is not implicated in her Community Treatment Order. He confirms the diagnosis of schizophrenia and the absence of any psychotic features or depression. He says that he had a detailed discussion with her about the various forms of amputation. JB was able to understand the main benefits and risks associated with each procedure, including the risk of death. He found her consistent in her views and reasoning process. She was very well orientated and had no problem with understanding or retaining information.

 

    1. Dr Prabhakaran discussed the then proposed through-knee operation, saying that it was the doctors’ preferred option. JB replied: “It is not my preferred option… I have a horror of the whole thing”. She said that she wanted her leg to remain as long as possible and only wanted any necrotic part removed. If she was to have an operation she wanted a longer leg and a hope of walking. She does not want to live her life with a shorter leg.

 

    1. During this conversation, JB would often pause for a long time before answering. Dr Prabhakaran considered this an effect of her schizophrenia impacting on her cognitive functioning, possibly alongside tiredness and the hospital environment. He says that given time, she can process and communicate her clear wishes. He is confident that JB has capacity to make a decision with regard to surgery, including a decision not to have it.

 

    1. Mr Collin assessed JB from a surgical perspective on 13 February. His conversation with her gave him a full opportunity to assess her understanding, as would be normal in such a case. His report details a full conversation. JB was able to give him a lucid and coherent medical history. In Mr Collin’s experience, few patients would give a better account. She has a tendency to minimise, but this is a natural response and not evidence of any incapacity. Mr Collin is aware that JB is mentally ill but throughout the discussion she gave him no reason to suspect a lack of capacity to consent or withhold consent for any essential operation.

 

    1. Mr Collin explained that JB’s decision in October to refuse surgery was unusual but not illogical and that from the medical perspective the loss of the foot by natural processes had been satisfactory. Surgically, her position is better now than it had been in October in that she is not currently suffering from any infection. As matters now stand, it is Mr Collin’s opinion that a below-knee amputation is the only sensible clinical decision to make, but if JB does not want this there would be no compelling reason to seek to persuade her otherwise. A substantial risk of infection with possibly life-threatening consequences in the longer term undoubtedly exists and the medical advice from any surgeon in the land would be clear, but she does not have to take it. Apart from anything else, the greater short-term risks arise from remaining in hospital with the risk of infection and from the small but not insignificant possibility of a major adverse consequence from surgery of this kind.

 

    1. It was, perhaps surprisingly, suggested to Mr Collin that he lacked the expertise to assess capacity. He accepted that the assessment of mental illness was outside his remit but said that he was well qualified to assess the capacity of patients to consent to operations. I agree. All doctors and many non-medical professionals (for example, social workers and solicitors) have to assess capacity at one time or another. Bearing in mind JB’s longstanding mental illness it is entirely appropriate that the core assessment of her capacity comes from psychiatrists, but other disciplines also have an important contribution to make.

 

    1. The combined and complementary evidence of Dr Prabhakaran and Mr Collin provides powerful confirmation that JB has the ability to understand, retain and weigh and use the necessary information about the nature, purpose and effects of the proposed treatment. I accept the view of Dr Prabhakaran that JB’s schizophrenia is relevant to the way in which she decides, and not to her capacity to decide. Her tendency at times to be uncommunicative or avoidant and to minimise the risks of inaction are understandable human ways of dealing with her predicament and do not amount to incapacity.

 

    1. I depart from the assessment of Dr O because I am not satisfied that she establishes the necessary link between JB’s mental illness and the alleged incapacity. Further, her analysis demands more of JB than the law requires. It is not for JB to understand everything, or to prove anything. Dr O among others has perfectly properly raised questions about JB’s capacity, but her evidence does no more than that and does not discharge the burden upon the Trust.

 

  1. I do not accept the Trust’s submission that incapacity can be deduced from isolated instances of eccentric reasoning on the part of JB: for example, agreeing to intravenous antibiotics or blood transfusion but refusing the necessary cannulation. I also reject the submission that those who conclude that JB does not lack capacity have failed to grapple with the facts that (i) she undoubtedly lacks capacity in relation to treatment for her mental illness and (ii) she has lacked capacity in relation to surgical treatment in the past and (iii) she has changed her position from refusal of all surgery to a willingness to contemplate an operation of some kind, a situation calling for investigation. As to the first element, as has already been said, there is no necessary correlation between a lack of insight into schizophrenia and incapacity to decide about surgery. The second element begs the question, in that it has not been established that JB has ever lacked capacity to decide about surgery. Finally, the development in JB’s thinking about amputation was in my view well understood by Dr Prahakaran. Insofar as it calls for any explanation, her view has evolved over time in a way that is consistent with her mental state.

 

A particular issue arises, and is dealt with in paragraph 28 – there was a time in the process, when JB was accepting that surgery was the right option (i.e following the medical advice). There’s always a risk in these situations that one tends to assume that the person has capacity when they make a decision that the doctor supports – just because JB agreed with the doctor does not mean that she had capacity. If she had said no, on the same day, the temptation would have been to dispute that she had capacity to say no, but the test and principles are the same. The ability to say no doesn’t require more capacity than the ability to say yes.

 

28. A similar issue arises from the statement of Dr W, a vascular surgeon. In common with the other surgeons he believes that an amputation is in JB’s best interests. Writing on 5 February, he said “…we now have a window of opportunity as she has become cooperative with her medical management and has consented to the operation…” There is a danger that in a difficult case like this the patient is regarded as capable of making a decision that follows medical advice but incapable of making one that does not.

 

The conclusion therefore was that JB had capacity, and that there was no locus to make a declaration. It seemed that JB might be more willing to consent to the surgery, but that had to be her free choice.

My conclusion is that JB undoubtedly has a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacks insight), but that it has not been established that she thereby lacks the capacity to make a decision about surgery for herself. On the contrary, the evidence establishes that she does have capacity to decide whether to undergo an amputation of whatever kind. She now appears to be open to having the below-knee operation that the doctors recommend. Whether she has it will be a matter for her to decide for herself with the support of those around her.

What IS the Court of Protection?

This is intended to be a beginner’s guide to the Court of Protection, not exclusively intended for lawyers. There are, in fact, some journalists who might benefit from it.  You may have been reading about the Italian woman who underwent a ceasarean section without her consent, and want to know how decisions like this are supposed to be made and what powers the Courts have.

To be fair to the national press, I’ve just had to expand 3000 words to absolutely race through even the basics of the Court of Protection, without even getting into the nuts and bolts of this case, so one can see why they end up saying “A secret Court” and leave it at that.   Perhaps in future, this piece might be a handy link or source for anyone who wants to understand the basics of  how that secret court is meant to operate.

I in no sense think that the Court of Protection is flawless or perfect, and it is perfectly possible for very bad decisions to be made, but at least understanding the nuts and bolts of the fact that decisions are made by a Judge, with a lot of tests and guidance might help people avoid some of the more dreadful factual errors that came about with some of the recent reporting. Otherwise you end up endlessly debating the rights and wrongs of a set of abhorrent things that DIDN’T actually happen, as opposed to very real and important rights and wrongs of a set of very troubling things that DID.

[It is like determining US and UK foreign policy post 9-11 based on Kay Burley's account on Sky News on the day that "The entire Eastern Seaboard of the United States has been decimated by terrorist attacks" rather than what actually happened, which was awful and significant enough without lurid inaccuracies *]

What is the Court of Protection, and is is a secret court?

The Court of Protection is a branch of the English and Welsh court system, dealing with cases involving people who either do not have capacity to make decisions about certain things for themselves, or to determine whether in fact they do have that capacity. The Court of Protection as we now know it was set up by the Mental Capacity Act 2005, building on the Court of Protection which had previously dealt with financial matters  (Thanks to @barbararich for pointing out my original inacuracy, now fixed, and for doing so nicely).

It is not open to the public. The Press have to make an application if they want to attend the hearing. Some decisions of the Court of Protection (judgments) are made public on law sites like Bailii

http://www.bailii.org/ew/cases/EWHC/COP/

if they contain important points of law or principles which might apply to other cases or are in the public interest, but the day to day decisions are not made public  (yet – the President of the Family Division has indicated that he intends to bring about publication as a matter of course of all decisions of the family courts and probably the Court of Protection too).  When those decisions are made public, the identity of the person concerned is usually anonymised.   (There are certain, though rare cases, where the identity is revealed, such as the Mark Nearey case http://www.independent.co.uk/news/people/profiles/mark-neary-they-didnt-understand-steven-they-saw-me-as-a-fly-in-the-ointment-2295565.html )

So the Court of Protection is certainly secretive – there are arguments that this is done to protect the vulnerable people concerned, but the President of the Family Division takes the view that the counter argument that without exposing their decisions to public scrutiny there’s a risk that the public lose confidence in the work they do and that hyperbolae is taken as gospel  (he would seem, from events this week, to be right) and it is almost irresistable now that judgments from the Court of Protection will be made routinely available, and probably that the Press attendance at Court of Protection hearings will become the default position (with the Court having to given reasons why they SHOULDN’T be there)

Why did the Court of Protection come about?

It was introduced by the UK Parliament as a result of a case that went to the European Court of Human Rights, involving a man who is known as “L”  (the case is also well known as the “Bournwood” case, after the Trust involved). L had been a day patient at a centre, and lived normally with a family. He did not have capacity to make decisions for himself, but was not mentally ill or dangerous. One day he had an episode at the centre and when his family came to collect him, they were told that he had to stay at the centre. Now, if L had been detained under the Mental Health Act, his family would have had all sorts of legal safeguards and abilities to challenge his detention. Equally, if L had had the capacity to say to the unit “I want to go home” they would have had to let him, but L fell between these two situations, and there was no proper mechanism. Many commenters and professionals working with vulnerable adults felt that it was inherently wrong that someone like L could be detained for months or years with no legal safeguards, just because he wasn’t in a position to object. The ECHR agreed.

At the same time, Parliament brought into one statute, legal provisions for some decisions that the High Court had historically made under their Inherent Jurisdiction  (Inherent Jurisdiction would require a whole other beginners guide, but if you just read Inherent Jurisdiction as “High Court superpowers” you won’t go far wrong) – for example deciding whether doctors could carry out surgery on a patient who was refusing it, dealing with marriages where people had no ability to understand the marriage vows, protecting the finances of vulnerable people, and wrapped it all up into one statute.

The thinking was to give protection and safeguards for the most vulnerable people in society, those who are not able to look out for their own interests.  (Many commenters believe that the MCA began with those noble intentions but hasn’t in practice delivered on them)

Who brings cases to the Court of Protection ?

The cases are normally brought by one of these four groups (though others are possible) : -  the health trust whose doctors are treating the person, the care home who is providing care for the person, the Local Authority who are providing services for the person, or on behalf of the person or their family.

How does the Court decide whether a person has capacity?

The Mental Capacity Act sets out a test as to the REASON why the person lacks capacity

Section 2

(1)For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)It does not matter whether the impairment or disturbance is permanent or temporary.

And then sets out a test for deciding WHETHER  a person lacks capacity

Section 3 Inability to make decisions

(1)For the purposes 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 his decision (whether by talking, using sign language or any other means).

(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)deciding one way or another, or

(b)failing to make the decision.

It is VERY VERY important to note that a person is entitled in law to make a bad decision, an unwise decision, a daft decision, a decision that no other person would take; AS LONG as they understand the situation they are making the decision about.   (For example, Carla out of Corrie is entitled to marry Peter Barlow even though he is a love-rat with a history of bigamy, an alcoholic and is trying it on with Tina from the Rovers, even though many people would think she was foolish to do so. But if she does not understand that marriage is the union of one man and one woman (currently) and is intended to be for life although it can be ended through divorce, then she can’t marry him.  Just as, if he drinks and is so intoxicated that he can’t understand that, he can’t legally enter into a marriage contract  – but that is PRETTY drunk)

It is also important to note that just because a person lacks capacity to make one particular decision, it doesn’t mean that they lack capacity to make any sort of decision. Some decisions are more complicated to weigh up than others and need more capacity to understand.  Over a period of time, the Court of Protection has decided cases and set up guidelines for what sort of understanding a person has to have for certain decisions.

For example, classically, in order for a person to have the capacity to consent to sexual intercourse they have to be able to understand the following three things :-

(i) The physical mechanical act

(ii) That pregnancy can occur and what pregnancy is  (and contraception)

(iii) that you can get diseases through sex (and how to avoid that)

The person doesn’t have to understand the emotional implications (that you could get heart-broken or sad, or that the other person might) or be able to weigh up who is a good person to have sex with and who is not, just those three factors.    (For homosexual sex, the second factor is taken out)

You will see from the legal test that the person has to be helped, with explanations suitable for them, to reach the point of understanding the issues so that they can make the decision for themselves. The law WANTS people to make the decision for themselves, and it is also worth noting that the starting point is that every person HAS capacity unless evidence is provided to the contrary.

If the Court decide that a person lacks capacity, what then?

The Court then have to make what is called a “best interests” decision.  That means deciding what is in the best interests of the person. That might be what the State (the doctors or social workers) say is best, it might be what the person themselves is saying or showing that they want, or it might be something else entirely.

The legal test is set out in the Mental Capacity Act

section 4 Best interests

(1)In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—

(a)the person’s age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)He must consider—

(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)if it appears likely that he will, when that is likely to be.

(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)He must consider, so far as is reasonably ascertainable—

(a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.

(7)He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)anyone engaged in caring for the person or interested in his welfare,

(c)any donee of a lasting power of attorney granted by the person, and

(d)any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a)are exercisable under a lasting power of attorney, or

(b)are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10)“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11)“Relevant circumstances” are those—

(a)of which the person making the determination is aware, and

(b)which it would be reasonable to regard as relevant.

You can see that the Court are obliged to consider and take into account all that is known about what the person themselves wants, or would want, or has previously expressed about wanting (remember that a person might only temporarily lack capacity, so the Court have to take account of anything the person said or showed about the issue in the past), and also has to take into account the views of anyone who cares for the person or is interested in their welfare.

This is the difficult bit, and in most Court of Protection cases, the majority of the judgment is spent on the Judge deciding what is in the ‘best interests’ of the patient to do.  Sometimes that accords with what the patient is saying or showing they want, sometimes it does not.  It is the hardest part of the exercise, and to an extent, I agree with Lucy Series from The Small Places blog about capacity and mental health :-

A recently ratified UN treaty – the Convention on the Rights of Persons with Disabilities – poses the question: why should people with disabilities and mental illnesses face these kinds of interventions when people without do not? It looks very much as if the Mental Capacity Act itself is not compatible with this Convention, although views on this differ. It is certainly a question it would be good to see the media asking more often… Again, this is an issue that comes up a lot around the Mental Capacity Act 2005: how can we distinguish decisions which are merely irrational or unwise, which everybody is entitled to make, from those which are incapable. This is actually quite a profound philosophical problem (my own view is that it is insoluble; ‘mental incapacity’ is a conceptual device which we cling onto to mask the value judgments we are bringing to bear when justifying interventions in situations which we regard as intolerable). The disability Convention referred to above poses serious questions about how we deal with ‘capacity’, and emphasises the role of support for decision making. Even the Mental Capacity Act requires support to be provided for a person to make their own decision before it is made on their behalf, and decisions made on their behalf should involve the person as far as possible. “

How does the Court ensure that it is making the decision that is right for the person, and not the decision that “seems” the right thing to do from a paternalistic “The State knows best” approach.  The Court of Protection at essence is a referee between the tension of “the State needs to decide what is best for vulnerable people” and “people should be free of State interference and make their own decisions”.  It is not easy, and it can seem to those outside that the Court of Protection doesn’t always get things right.

It is certainly a new system (in terms of law, 8 years of operation is a baby) and it would be astonishing if mistakes weren’t being made and lessons were there to be learned. So it is important to scrutinise the decisions and for the Court of Protection to be responsive and reflective to changes both in law and attitudes in society. Twenty years ago, a man saying that he intended to marry another man would have seemed peculiar to most of society, now a Conservative Prime Minister is driving that change.

But, if a person doesn’t have capacity to make a decision, how do they fight the case?

Well, this is the million dollar question. Remember firstly that just because a person lacks capacity to make one decision doesn’t mean that they lack capacity to make all decisions. So it is possible for a person to be able to instruct his lawyers to fight the case, whilst the Court decides on the real issue in question. But very often the issue of capacity will also affect the person’s capacity to instruct a solicitor.  There is firm guidance on the legal test to be able to instruct a solicitor, and where a person doesn’t meet that test, they can’t give instructions directly to a solicitor.

[A person who HAS capacity is able to tell their solicitor to do something really foolish or unwise or downright dumb - i.e Carla can tell her solicitor to put all of her assets in Peter Barlow's sole name and to sign a pre-nup saying that she has no claim on any of what is now his property. That's stupid, but if she understands the nature of what she is doing, she can do it.]

What happens ordinarily then is that an agency known as the Official Solicitor is appointed by the Court   (not by the social worker or Trust, as certain national newspapers seem to think) and the Official Solicitor will decide how the case is to be run on the persons behalf  – that might be to fight the case every inch of the way, it might be to offer no resistance, it might be to be neutral and say that the doctors or social workers have to prove their case, or it might be that some parts of the case are challenged very hard and others aren’t. It is up to the Official Solicitor)

Now, one can see where that causes a problem. The person lacks capacity, say, to make an informed decision that if surgeons don’t cut off their foot they will die of gangrene, but is very vocally saying “Don’t cut off my foot, I would rather die”.   The doctors will be able to tell their lawyers to argue all the reasons why the surgery will happen. The Judge knows what the person is saying and has to take it into account. But there could very well be no lawyer who actually argues to the Court all of the reasons why the surgery SHOULDN’T happen, they will only do that if the Official Solicitor decides that it is in the person’s best interests to fight the case.

(You may see that you end up with both the Official Solicitor and the Court making decisions about what each of them CONCLUDES is in the person’s best interests to do and that can appear to be a blurring of roles.  When a lawyer acts for someone who has capacity, she gives them ADVICE about what is in their best interests, often very strong advice, but where a person says “I hear all that, but I still want to do X instead” that lawyer goes into Court and argues fearlessly and without favour for X.  You end up with, here, a situation where the most vulnerable people in society get less protection from the lawyer charged with representing them, than they would if they had capacity)

If you want to know more about the decision of the Court of Protection in ceasarean section cases, I heartily recommend this piece , which focuses on the legal side and the tests to be met

http://thesmallplaces.blogspot.co.uk/2013/12/more-questions-than-answers-on-forced.html#more

and this piece

http://www.birthrights.org.uk/2013/12/views-on-the-forced-cesarean-judgment/

Which looks at it from the perspective of the pregnant mother

* She actually did say that. And what better reason do I need to crowbar in a “Who said this, Kay Burley or Ron Burgundy” quiz?

http://www.huffingtonpost.co.uk/2012/03/29/anchorman-2-ron-burgundy-kay-burley-quiz_n_1387332.html

Stay classy, internet

“Cutting edge forensic linguistics”

A discussion of the Court of Protection case of PS v LP 2013

 http://www.bailii.org/ew/cases/EWHC/COP/2013/1106.html

 

An interesting case – I don’t cover Court of Protection stuff as often as I should, and this one throws up some interesting ideas about certainty, expertise and cutting edge science.

 This one involved a woman, LP, who had separated from her family and formed a new relationship with a man PP.  The family considered him to be an unhealthy influence on her. PP for his part said that the family had treated LP badly and that she had wanted nothing more to do with them.

 

Disaster struck on 25th August 2008 when LP suffered a cerebral aneurism which has left her severely disabled. She is gravely impaired. It is, I understand, impossible to obtain from her any indication of her wishes at the present time. She is said to be in need of twenty four hour care and resides at a nursing home provided for by the relevant PCT and she is fully CHC funded. It is uncertain whether she knows who or where she is. There is a possibility of an operation to deal with her hydrocephalus but it is by no means certain that this will improve matters. There is a chance it may improve communication and a little improvement might enable her to show like or dislike of ideas or people but any changes are said to be likely to be small.

 

Since that time, she had had no contact with her family. A letter and a will, essentially cutting them out of her life were prepared shortly before this cerebral aneurism

 

  1. On 27th July she apparently signed a document entitled, “Last wishes should my ex-family find Paul and me,” and on 28th July 2008 she prepared a document entitled, “Last Will and Testament.” The letter of wishes is badly spelt and drafted.
  1. The will is clumsily drawn and is likewise written in poor English. It is rambling in parts but that reflects an ignorance of the law and legal niceties rather than an incapacity in some way in that she leaves any inherited monies “in trust” for B, her great grandson, she leaves a necklace to DP, the wife of PP, and everything else to PP, her cohabitee. There was gift over in the event of PP’s demise to R. The will criticises “my ex-husband and siblings” “because of the abuse I received from them.” It does not mention her children but I suspect that is because she did not appreciate the meaning of the word “siblings.”
  1. The letter of wishes recounts a history of alleged physical and mental abuse from JR, PS, JP, PS’s son, and grandson, D2. It refers, in confirming her problems, to Detective Sergeant NL at a police station. It relates how she built up a relationship over the years with PP despite physical and mental abuse from BP. It says that her parents and her brother, R, were pleased that she had found happiness with PP. It ends by resuming criticisms of PS, JR, JP, D2, KR and her husband. There is no doubt that the PS family and BP will have found this letter very upsetting.

 

The family said that this document was not in fact prepared by LP, but by PP and that it was not something that she would have prepared and used words and a style that she would never have used.

 

Additionally, even if those were the wishes and feelings she had recorded shortly before her awful and sudden life-changing illness, were they to be adhered to now?

 

The Court heard evidence from all of the family, and PP, and from the police officer who spoke with LP and PP when the allegations of abusive behaviour by the family were made. The police officer was obviously unable to say whether the allegations were true, but was able to give evidence to the effect that there was nothing in the presentation that suggested that PP was the driving force, or that LP was under his thrall, or being coerced into saying these things.

 

The case then becomes quirky, because in order to consider whether the documents of July were written by LP, the Court authorised the instruction of two Professors, Professor C and Professor PJ, whose expertise was forensic linguistics, and both were operating “at the cutting edge of it”

 

Until today, I was not aware that there even was a field of forensic linguistics, let alone a cutting edge of it, but one lives and learns.

 

  1. How did Professor C’s evidence assist me? He is the Emeritus Professor of forensic linguistics at Aston University and wrote a report of 4th October of last year. I have no doubt about his expertise. His view was this:

“The linguistic evidence is consistent with the hypothesis that the wishes, will and PP’s text were all typed by the same person.”

But he was also cautious and he added this:

“There are, however, no distinctive linguistic features to enable me to express an opinion on whether the author of the three texts was the same.”

So he is much more cautious than Professor PJ and Professor PJ’s evidence, is therefore, the more important.

 

i.e he compared a sample of writing KNOWN to come from PP, with the documents in question and concluded that the writing is consistent with having all been by the same author, but wasn’t able to take the next step and say “The will and letter weren’t written by LP, but by PP”   but just rather that it wasn’t possible to exclude that as a possibility.

 

  1. Professor PJ gave evidence through the court TV video link. He is an Associate Professor of computer science at Duquesne University, Pittsburgh, USA. His specialism is the assessment and evaluation of authorship/ attribution of written pieces of work and he is the author of a programme called JGAAP, Java Graphic Authorship Attribution Programme, a computer authorship analysis system funded by the National Science Foundation of the United States. So his work, to quote Miss Hewson, is “cutting edge forensic linguistics.”
  1. He was asked by those acting for PS to consider the last wishes and the will and the statements of PP. He reported on 27th November to the effect that the letter of wishes and the statements were, in his opinion, written by the same person; in other words, that PP is the true author of the letter of wishes. He did not form the view, however, that the will was written by him but that was because it was of a notably different genre; i.e. a written will in legalistic phrasing. But he did not reject the hypothesis that all three could have been written by the same person.
  1. In addition to his first report, I have read questions put to him by the Official Solicitor and read his replies of 4th January and I have seen his supplementary report. I have noted that he accepted that a person is likely to use similar language and phraseology to that of his partner but he took the view they were not likely to be identical. That supplementary report to which I have referred was filed on 25th January. He had prepared that as a result of seeing an additional document of PP. He ran the same tests as before and noted again that he thought the same person was the author of that second statement.
  1. He maintains his conclusions on this basis: of sixteen tests that he performed, fourteen, he said, show the authorship was similar in that of the letter of wishes and PP’s two statements; and he became quite forceful and firm in his conclusion that PP was, indeed, the author of the letter of wishes.
  1. I have to say the professor’s written reports and his analyses are not an easy read. He has examined in his reports the difference between the style and presentation in various documents in the sixteen tests he conducted and come to the conclusions I have set out. At answer eighteen to the questions raised by the Official Solicitor, he sets out the experiments undertaken as to how he looked at, for example, vocabulary, sentence lengths, word pairs and so on.
  1. I am quite unable to assess the validity of this analysis as a discipline. It is new to me and I know of no UK expert, save the related expertise of Professor C, to which I shall again come, but I do not know the quality and reliability of this kind of expert evidence for it is a relatively new specialism.

 

 

 

Professor PJ goes on to say that he is 99.9% sure, looking at the statement prepared by PP, that the author of that statement was the same person as the author of the letter  expressing the wish not to be involved with her family or see them any more (and thus that LP hadn’t written them).

 

But of course, the Court had to be troubled by the degree of confidence one could have in this science.  And here we get to a very interesting (to me) issue.

 

Professor PJ doesn’t arrive at this conclusion by poring over the samples himself, but by using a computer analysis of the sample documents. And he was the creator of that computer programme, and accepted that over recent years he had made changes and adjustments to the computer programme  (the inference of course, being that these changes had been needed to make it more accurate and reliable, and that one couldn’t anticipate whether subsequent changes might be needed to fix current unknown inaccuracies)

 

In a situation like this, who is the expert? Professor PJ, or the computer? Can a computer programme be an expert? Does the computer have to give evidence ? (“I’m afraid I can’t help you with that…. Judge“)

 

Can the computer analysis be accurate, without the Court knowing much more about it?  Since after all, the science put into the computer programme could be completely accurate, but there could have been an error in the programming, Professor PJ not being an expert in computers but in linguistics.  

Even if the linguistic principles going into the computer are right, could there have been an error in creating the computer programme to analyse? How would one know?

 Could we ever reach a situation in which expert assessments are conducted by computers rather than people?  All exciting geeky sci-fi questions intriguing my imagination. A computer, if programmed correctly, couldn’t be biased, couldn’t be lying, couldn’t be recollecting poorly, couldn’t be inconsistent… but of course, “if programmed correctly” is a very significant element of that – how would you know for sure that biases, incorrect assumptions, improper weighting hadn’t been incorrectly incorporated into the initial programming.

[This stuff is so cutting edge, I haven't even seen it in CSI  - I can now imagine a good storyline in which the computer programme proves who wrote a blackmail letter, or whether the suicide note was really written by the deceased...  And lo, in a quick search for a nice image, I find a good computer programme to assist Horatio Caine in his decision-making]

 horatio caine

 In the event, the Court were not persuaded to make the finding sought by the family that PP had written the letter of wishes, and thus it should be simply discarded.

 

  1. First, I do not doubt the family of LP have shown a considerable degree of care and concern for her in the proceedings before me. I do not think that BP or PS or anyone else in the family poses a physical risk to LP now, whatever the past history may be about which I make no findings. The question for me to look at with care is what is in the best interests of LP as to contact.
  1. I note, of course, that the husband and family of LP are unsophisticated. BP struggled to help me at times during the course of his evidence, although I have sympathy because of his having had two strokes; they have plainly affected his speech, his memory to a degree and his cognitive functioning, but I accept, of course, that his concern for his wife was palpable.
  1. Miss Hewson, second, describes that any decision I should make that BP and PS should be “banned” (her word) from contact would be “a draconian level of interference in LP’s private and family life,” and she seeks that I should draw that conclusion. Of course, it would be a breach of Article 8 rights were it the case that LP’s wishes were not being considered and assiduously weighed up by me and I hope in due course I will come to a careful consideration of the Mental Capacity Act but that Act is compliant with the Human Rights Act and I shall apply, in particular, section 4(6) in due course.
  1. But I remind myself of the decision of the Court of Appeal in the case of K v LBX [2012] EWCA (Civ) 79. In that case the Court of Appeal observed that the right approach under the 2005 Act was to ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights or if that violation is, nonetheless, necessary and proportionate. In that case Black LJ pointed out that:

“Giving priority to family life under Article 8 by way of a starting point or assumption risks deflecting the decision maker’s attention from one aspect of Article 8, private life, by focusing his attention on another, family life. There is a danger it contains within it an inherent conflict for elements of private life, such as the right to personal development and the right to establish relationships with other human beings in the outside world, may not always be entirely compatible with the existing family life and particularly not with family life in the sense of continuing to live within the existing family home.”

  1. Third, Miss Hewson contends the court should not act as some sort of divorce court. Well, of course, it should not and I am not, in deciding as I do, decreeing any form of divorce or judicial separation.
  1. But, fourth, there is no doubt in my mind that LP’s wish not to see her family was quite genuine and of her own volition at the time she expressed it.
  1. I say this because I accept the account of Detective Sergeant NL who seemed to me to be entirely credible. Moreover, I have noted his own expertise in dealing with the vulnerable and his being used to dealing, for example, with honour based violence so he would be more than aware of the possibility of a person’s wishes being overridden by the controlling or threatening behaviour of a member of the family, partner or spouse. No alarm bells rang for him. He saw no need at any time to interview LP on her own. Furthermore, she had the opportunity of saying she was acting under some kind duress when he took PP to the rear of the police station to interview him about the alleged sexual offence and LP said nothing to the desk sergeant or anyone else.
  1. Moreover, I must assume that at the time when she left her family and ran away with PP and at the time she saw the detective sergeant and when she signed the will and letter of wishes she has to be assumed to have capacity to make the decision that she wanted nothing more to do with her family unless the contrary is shown and it has not been.
  1. Fifthly, I do not find PP to be a dominating or bullying man. True he was indignant when Miss Hewson put to him that he had forged the will and the letter of wishes but he showed no sign of being intimidatory or controlling; rather I noted a man deeply affected by the catastrophic injury to LP and hoping, perhaps futilely, that she would somehow improve and be with him. He plainly has no financial motive in running away with her. Not only has she no assets but I understand he has lived on pension credit alone. This man is not a so called gold digger. But he is a man whose memory is inaccurate at times. He cannot have been asked about the sexual assault allegations of N in late 2008. He did not raise with the officer the issue of death threats in June 2008. There was no warrant for his arrest as he claimed. So he has tendency to misunderstand and overstate and his memory is at fault at times.
  1. But, sixthly, for all of that, I am constrained to find that LP signed the will and the letter of wishes and I am so constrained because the signature is similar to the untrained eye, albeit smaller, to the writing on the one postcard and letter of years ago that I have seen. In addition there is the clear evidence of KM. He, of course, did not know what he was witnessing but it is quite clear that LP wanted an independent witness and his account is clear and coherent. He was certain that PP was not there when the documents were signed so there is no obvious evidence of immediate intimidation or improper behaviour. If LP signed the documents of her own volition, then they must, on the face of it, be found to be what she wanted to say. In other words, she did not want to see her family, and that includes her husband of many years standing, and that she wanted to say the bitter things about the family that she then did.
  1. Seventh, I do not find that the poor drafting and inelegant expressions to be found in the letter of wishes and the will should immediately lead me to the conclusion that they are of no effect. Looked at in the round, LP made it quite clear who did she did not wish to see and I do not ignore her wishes simply because they are not expressed very well or elegantly.
  1. Eight, did LP really draft the will and the letter of wishes and feelings? That is a much more difficult question to answer. I do not see in Professor C’s written evidence how he could draw the conclusion quoted by me that he did and his conclusions as to the striking similarity between the will, letter of wishes and statement of PP are couched overall with such caution that I am unable to draw a clear and unequivocal conclusion from his evidence alone. Moreover, there is room for uncertainty, even on Professor PJ’s evidence, as to the will’s authorship so I cannot say she did not draft that or have a part in drafting it.
  1. What specifically of the letter of wishes? Much depends on the credence this court gives to the new discipline in which the professor specialises. There is no doubt the specialism of forensic linguistics is a developing one. The professor himself indicated that to me by conceding that his computer programme had been rewritten in part in recent years because, no doubt, of inaccuracies. I have not been told of any other case in the Court of Protection where this sort of evidence has been used, or, indeed, referred to any other English civil case where this discipline has been found to be of importance in determining the case, or, indeed, of great value or significant assistance. In fairness, I repeat Miss Hewson referred to my having to deal with ‘cutting edge technology’ in the course of the case.
  1. I do bear in mind the recent judgment of the President of the Family Division in the children case of In the matter of TG (A Child) [2013] EWCA (Civ) 5, although, of course, that judgment was issued after I had permitted the expert to be instructed. It seemed to me at the time to be right, however, to admit the investigations of the professor and I acknowledge he has formed a firm view that the author of the letter of wishes is the author of PP’s statements. But I bear in mind that even the professor has in various articles cited to me by Mr. Patel acknowledged difficulties in the technique of authorship attribution. Moreover, each of the tests that the professor employed on his case has a margin of error of up to twenty per cent. I am persuaded by Mr. Patel’s helpful analysis of the documents at paragraph 22E of his final written submission which I now quote:

“Lastly, looking at Professor PJ’s results, W1 is as similar to W2 as W2 is to S and both pairs are less similar than W1 is to S1. Professor PJ explained the difference by saying the gap between W2 and S is, in his opinion, due the difference in the genre of the two documents, W2 being notably different. However, that explanation could account for the difference between W1 and W2, rather than it being attributed to a difference in author. Further, it could also account for why W1 and S are similar to each other as they are documents which are not in a notably different genre. In the Official Solicitor’s submission, the failure to explain the matters set out above may have been due to the bias in instructions. Professor PJ may have been anxious subconsciously to favour an interpretation which supported the positions of the party instructing him and of Professor C for whom he was doing a favour.”

  1. And that leads me, of course, to a slightly worrying aspect of Professor PJ’s evidence which to an extent affects its standing; that is, the manner in which he had become involved. In saying this I make no criticism of the solicitor or counsel for PS. The letter of instructions was perfectly proper. But in evidence Professor PJ agreed he had accepted instructions as a favour to Professor C, whose conclusions, as I have set out, are somewhat uncertain. Second, he simply did not seem to comprehend that the basis of accepting instructions might give the appearance of bias. To say the computer has no friends and does not lie is to avoid the issue and, indeed, does not understand the difficulty. But he did accept that the account of the background that he had received risked introducing bias.
  1. So I view Professor PJ’s conclusions with some caution, though I by no means dismiss them on that basis alone. I cannot find that his conclusions were biased even if I have been given some cause for concern.
  1. I consider, however, that, even if PP did have a part in drafting the letter of wishes and has lied about that, it is much more difficult to discern what that part was. I do not and cannot find that LP’s will was overborne in drafting the letter so my conclusion is that, when PP insists he had nothing to do with drafting this, that, even if he might have played a part, it is not a matter that determines the issue.
  1. So, ninthly, I ask myself, nonetheless, does it matter if PP drafted or helped to draft the two documents or one of them? The other evidence is clear enough. A woman aged fifty nine, not then suffering from any discernible illness or disability at the time, chose to leave her family and her husband with whom she had had a relationship of forty years. She chose to go with PP. She chose to go to a police station with him. She chose only to contact her brother, parents and, if N is to be believed, N. She chose to leave her estate to PP with a gift over to her brother and a “trust fund” to B, the great grandson on whom she doted. These actions may be unkind, ungrateful and even mean spirited. These actions may be inexplicable but they were an adult’s decisions, however justified or unjustified, and not lacking in logical thinking. Even if she was being inaccurate in what she claimed, that is the point. I cannot find and have no evidence on which to base a finding that her will was overborne by PP. This is not a clear case of duress or undue influence. People take inexplicable decisions, if her decisions were inexplicable. I cannot look into the mind of a person back in 2008 and say that she was not then capacitous.
  1. Tenthly, does it matter even if PP has lied as to his involvement in drafting the documents? Assuming for one moment he did, after all, draft them or assist in drafting them, I apply, insofar as they are relevant, the directions in the criminal case of Lucas. I need to determine whether his purported untruths support or undermine his evidence. A witness may lie for many reasons and those reasons do not necessarily denote an attempted fraud or misleading of the court as to the true nature of the case. The alleged lie as to the authorship of the letter of wishes or the will may well have been an attempt by him simply to bolster the case. He is, after all, palpably at odds with the family of LP and wants no contact with them. More than that, he is plainly fearful of them. I cannot and do not find that, in having a part in drafting the letter of wishes and of the will, PP would have substituted his views for LP’s and I cannot and do find, in any event, that the document has been written after LP’s stroke. There remains no evidence that PP forged the letter and its contents are entirely consistent with what was said to the detective sergeant by LP.
  1. Eleventh, then, I do not find that Professor PJ’s evidence takes me to the point at which I must conclude there has been serious misleading of the court by PP. I do not find him to have forged any documents and I believe the will and letter of wishes, by whomsoever they were drafted, to express the genuine wishes at the time of LP, wishes that remained firm at the time of the aneurism. It is a very heavy burden on a party to show that PP has been guilty of fraud, forgery or duress of some sort and PS has not surmounted it.
  1. Twelfth, Miss Hewson asked me to find that the letter of wishes has no legal effect, given the uncertainty as to its genesis. I cannot find that for the reasons I have set out but I bear in mind that the time since it was signed has elapsed and, of course, in fact we cannot tell what LP would have intended in circumstances like the present.

 

 

Having established therefore that the letter and will were reliable evidence for what LP had intended at the time that she had capacity, the Court then had to look at whether those intentions should remain live today, some five years on, and after of course a very serious life-changing illness (which LP had not anticipated  – it wasn’t suggested that she knew it was forthcoming and was effectively writing a “living will”)

 

  1. First, not without very careful thought, I take the view I cannot direct that contact be immediately restored to husband or family and particularly PS, the Applicant, terribly sad though that is. It appears that LP took the decision that her future was with PP and she wished to break with the past. Accordingly, I declare that at present it is in the best interests of LP not to see her family. I say this with great regret and I hope not without sympathy for the family from whom she was estranged but this is not the time to experiment with contact. Unless things change, her wishes must be respected and the position remains as it is.
  1. I find that in coming to that conclusion I have not overridden Article 8 rights but, if I have and to the extent that I have, then that overriding is reasonable and proportionate.
  1. And, second, I come to this conclusion. The time may yet come when it is in the best interests of LP to see her family again but that can, in my judgment, only be when she is capable of expressing a view to that effect. Despite Miss Hewson’s elegantly expressed argument, it is not, in my view, appropriate for there to be a trial period of contact. That said, it is only right the extended family should be kept informed of developments. I, therefore, invite Mr. Patel, on behalf of the Official Solicitor, to suggest now a means by which after approximately every six months contact can be made with PS and her family whereby the family are told whether LP has developed an ability to express, or, indeed, has expressed a genuine wish to see PS and/or the remainder of her family in which event there will be permission to apply on forty eight hours notice for urgent directions to me and I shall reserve the case to myself when available

an englishwoman’s home is her castle (unless she is 82) ?

A race through KK v STCC 2012 – on deprivation of liberty, capacity and Court of Protection.

 

The judgment is on Baiili, here:-  http://www.bailii.org/ew/cases/EWHC/COP/2012/2136.html

 

It is a High Court decision, dealing with an 82 year old woman, KK, who had found herself in a nursing home STCC. It was, by all accounts a good nursing home, and meeting her needs. But KK wanted to go back to her home. The case obviously therefore grapples with interesting issues of capacity and where the State can or should assume responsibility for making decisions about a person’s life.

 

KK developed Parkinson’s disease and also had an admission to hospital following a fall. This left her disoriented and muddled and a psychiatrist who assessed her decided that she lacked capacity to make decisions. A best interests meeting (and I can already hear many of you saying “best interests? whose best interests?”) decided that she could not return home and should move to a nursing home. She made some improvements there and went back to her bungalow.  There was an out of hours emergency support line, and the LA report KK having used it over a thousand times in a six month period, leading them to review whether she could remain at home.

 

(This has interesting echoes of the Supreme Court case involving the woman who was incontinent at night and wanted workers to help get her out of bed, but was instead given effectively adult nappies – leading to the debate about whether provision of social care services ought to involve a duty of dignity, as opposed to just meeting the needs in the most cost-effective way.

R (on the application of ELAINE MCDONALD) v KENSINGTON & CHELSEA ROYAL LONDON BOROUGH COUNCIL (2011)[2011] UKSC 33  – it was one where the Court were split, and fervently so, but finally ruled that this method of meeting her needs did not violate her human rights.  Frankly, although the budgetary implications of the decision going the other way, and there being a right to be treated in a dignified way were enshrined in law would be a massive change, I wish personally that the decision had gone the other way. I don’t feel comfortable with the idea that this is not a breach of human rights – and this is something that the mainstream press completely overlooked in all their human rights bashing – denying people in their old age proper humane treatment is far worse than all the ‘not deported because he had a cat’ nonsense)

 

The STCC made a DOLS decision that KK was being deprived of her liberty, and followed the correct legal process. The case found itself in Court and to be challenged.

 

There is a nice summary of the law on capacity, which I’ll quote in full, as it is a good starting point for grappling with these issues

 

Capacity – the law

    1. A person may be deprived of their liberty under the DOLS if the six qualifying requirements under Schedule A1 of the 2005 Act are satisfied. In those circumstances, the supervisory body, (in this case CC), may, on the application of the managing authority (in this case STCC), issue a standard authorisation for the deprivation of liberty, and, prior to the determination of an application for a standard authorisation, the managing authority may issue an urgent authorisation. The six qualifying requirements include, under paragraph 12(1)(c) of the schedule, the “mental capacity requirement”. Paragraph 15 of the schedule provides that: “the relevant person meets the mental capacity requirement if he lacks capacity in relation to the question of whether or not he should be accommodated in the relevant… care home for the purpose of being given the relevant care or treatment”.

 

    1. When a standard authorisation has been made by a supervisory body, s. 21A(2) empowers the Court of Protection to determine any questions relating to, inter alia, whether P meets one or more of the qualifying requirements. In particular, once the court determines the question, it may make an order varying or terminating the standard authorisation: s. 21A(3)(a). But once an application is made to the Court under s. 21A, the Court’s powers are not confined simply to determining that question. Once its jurisdiction is invoked, the court has a discretionary power under s. 15 to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Where P lacks capacity, the court has wide powers under s. 16 to make decisions on P’s behalf in relation to matters concerning his personal welfare or property or affairs.

 

    1. When addressing questions of capacity, the Court must apply the following principles.

 

    1. First, a person must be assumed to have capacity unless it is established that she lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on CC to prove that KK lacks capacity. The standard of proof is the balance of probabilities: s. 2(4).

 

    1. Secondly, the Act provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for capacity involves two stages. The first stage, sometimes called the “diagnostic test”, is whether the person has such an impairment or disturbance. The second stage, sometimes known as the “functional test”, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 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 his decision whether by talking, using sign language or any other means. Important guidance as to the assessment of capacity generally, and the interpretation and application of the four components of the functional test in particular, is set out in section 4 of the Mental Capacity Act 2005 Code of Practice.

 

    1. Third, 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 the question whether the person lacks capacity in question, in this case to make decisions as to her residence and care.

 

    1. Fourthly, a person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s. 1(3). The Code of Practice stresses that “it is important not to assess someone’s understanding before they have been given relevant information about a decision” (para 4.16). “Relevant information” is said in paragraph 4.19 to include “what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all”. Paragraph 4.46 of the Code of Practice adds that “it is important to assess people when they are in the best state to make the decision, if possible”.

 

    1. Fifth, I bear in mind and adopt the important observations of Macur J in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), that “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 .…” At paragraph 58 of the judgment, Macur J identified the question as being whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made”. A further point – to my mind of particular importance in the present case – was also made by Macur J at paragraph 24 in that judgment: “…it is recognised that different individuals may give different weight to different factors.”

 

    1. Sixth, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice states: “It is important to acknowledge the difference between

 

  • unwise decisions … and
  • decisions based on a lack of understanding of risks or inability to weigh up the information about a decision.

Information about decisions the person has made based on a lack of understanding of risks or inability to weigh up the information can form part of a capacity assessment – particularly if someone repeatedly makes decisions that put them at risk or result in harm to them or someone else.”

    1. Finally, 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 clinicians and professionals who have experience of treating and working with P, the subject of the proceedings. Often there will be evidence from family and friends of P. Occasionally, as in this case, there will be direct evidence from P herself. In A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, Charles J observed “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”. That case concerned an application for a care order under Part IV of the Children Act 1989, but the principles plainly apply to proceedings under the Mental Capacity Act in general and the assessment of the functional test under s. 2 in particular. In other words, when assessing the ability of P 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. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion. When taking evidence from P herself, the court must plainly be careful about assessing the capacity to understand, retain and use and weigh up information, but, whilst acknowledging the important role for expert evidence, the assessment is ultimately a matter for the court.

 

  1. There is a further point, to which I alluded in an earlier decision in PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam). In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham MBC v GW and PW [2007] EWHC136 (Fam) [2007] 2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the “child protection imperative”, meaning “the need to protect a vulnerable child” that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, 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. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.

 

 

Very nicely put, in my humble opinion, and it identifies one of the main pitfalls in this area – that of the State taking a very paternalistic approach of ‘we know best’.

 

KK gave evidence herself in Court, and the summary again is set out in full – there’s one particularly telling line at the end, when she was asked what would happen if at home in her bungalow, she were to fall and be unable to get up. She said, that if she fell on the floor and died on the floor, she would rather die in her own home than live somewhere else.

 

KK’s evidence

    1. Unusually, although not uniquely, this court received evidence from KK herself to assist in determining the question of capacity, not only in a written statement but also orally in court.

 

    1. In her oral evidence KK repeated that she wanted to live in her bungalow. She said: “Everything I’ve got is in that bungalow. My whole life. Everything there is familiar to me. I’ve got my hobbies. I’ve got all sorts of things. I am doing a model village. It is in my bedroom in the bungalow.” I asked KK how she got to her bungalow from the court. In reply, she correctly said that you have to go over a bridge, but gave the wrong name for the bridge. When I asked how long it would take to get there, she immediately replied “it depends on the traffic – a good half hour”. She told me that she could see everything in the village from her bungalow window – the church and the tower, the whole village. She collects porcelain dolls. She goes to the bungalow every day and spends several hours there before returning to STCC for the afternoon where she tends to sit in her room. Taxis take her to and from the bungalow. She has a special taxi, able to take the wheelchair. She now goes home three hours everyday.

 

    1. Turning to nutrition and hydration, KK gave the following evidence in her statement:

 

“When left at my bungalow with food I have struggled in being able to reach the food that is left on my table as my table has been filled with lots of different things and often the food gets pushed nearer the back. I have also struggled to drink some of the drinks left out as it has been difficult lifting the drink and moving the straw as my right hand has a tremor. If I was to return to my bungalow I would look forward to planning my meals and writing a shopping list with carers. The cooks at STCC try hard to make meals which I will enjoy, whilst I appreciate their efforts I generally do not like what they cook. I drink “Ensure” nutrition drinks to supplement my diet. I like the taste of these drinks and have asked to be put back on to them. … I get frustrated that STCC’s staff mash my food up and give me a spoon to eat it with. I do not need my food mashed up or a spoon to eat with. I do not think that my diet would be any worse if I returned to the bungalow as I would have meals of choice prepared for me and carers present to assist me with eating.”

    1. I asked her about her food intake during her oral evidence. She said that she could have what she liked for breakfast but usually just had a glass of milk. She repeated in oral evidence that the food was not very good at STCC – “like baby food”. She said that her favourite food was salad. She said that she could make a cup of tea for herself but she does not do so because her legs “are not too good”.

 

    1. As to her future care needs, KK observed as follows in her statement:

 

“I have considered what level of care that I would need whilst at home. I acknowledge that I need assistance in washing including myself, toileting, preparation of food and day-today chores. I anticipate that this could be adequately provided for with four, one hour care visits a day. It may be considered that I need an increased package. I am willing to discuss a suitable package with care professionals. I get on well with my social worker JL and respect his view and opinions. I do not believe that I would need care overnight. Usually I go to bed at 1900hrs and wake at 6 o’clock. Prior to my transfer to STCC I was put to bed by carers at approximately 1900hrs and was visited again at approximately 6 o’clock at which time they would wash and dress me and put me in my recliner chair. This worked well. This routine is similar to that which is in place at STCC.”

In her oral evidence, KK repeated that she would need four visits a day from two carers.

    1. In cross-examination Mr. Dooley asked KK about the cases when she had declined to go on the home visits. She said that on a couple of occasions she had not fancied going back because of the weather. There is a long path up to the bungalow. She was concerned that it might be slippery and that she might be blown over in her wheelchair.

 

  1. In her statement, KK acknowledged that whilst at the bungalow she used the lifeline alarm excessively. She adds: “I understand why this was inappropriate and consider my behaviour in using it so much to have been silly.” In oral evidence, she reiterated that she accepted that she had been using the lifeline in a wrong way. She said “I was nervous”. She added, however, “but I have learnt my lesson.” She was asked what would happen if she fell over. She replied: “If I die on the floor, I die on the floor. I’d rather die in my own bungalow, I really would.”

 

The opinion of all of the professionals was that KK did not have capacity to make decisions – however, the Court rightly identified that it is a factual matter that falls to be determined by the Court and those opinions (even if significant weight must attach) are not determinative.

 

The Court (and I find myself cheering a little as I type this) determined that KK did have capacity, and that therefore the State did not have the power to make her stay in the nursing home if she did not wish to do so.

    1. When considering KK’s capacity to weigh up the options for her future residence, I adopt the approach of Macur J in LBJ v RYJ (supra), namely that it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors. In this case, KK may lack the capacity to understand and weigh up every nuance or detail. In my judgment, however, she does understand the salient features, and I do not agree that her understanding is “superficial”. She understands that she needs carers four times a day and that is dependent on them for supporting all activities in daily living. She understands that she needs to eat and drink, although she has views about what she likes and dislikes, and sometimes needs to be prompted. She understands that she may be lonely at home and that it would not be appropriate to use the lifeline merely to have a chat with someone. She understands that if she is on her own at night there may be a greater risk to her physical safety.

 

    1. In weighing up the options, she is taking account of her needs and her vulnerabilities. On the other side of the scales, however, there is the immeasurable benefit of being in her own home. There is, truly, no place like home, and the emotional strength and succour which an elderly person derives from being at home, surrounded by familiar reminders of past life, must not be underestimated. When KK speaks disparagingly of the food in the nursing home, she is expressing a reasonable preference for the personalised care that she receives at home. When she talks of being disturbed by the noise from a distressed resident in an adjoining room, she is reasonably contrasting it with the peace and quiet of her own home.

 

    1. The local authority has attached considerable importance to KK’s excessive use of the lifeline in the first half of 2011. I infer that this was an important factor in the decision to move her back to STCC. It remains a significant factor in the professionals’ assessment of her capacity. To my mind, however, the local authority has not demonstrated that it has fully considered ways in which this issue could be addressed, for example by written notes or reminders, or even by employing night sitters in the initial stage of a return home. I also note that during KK’s daily home visits it has not been reported that she has used the telephone in ways similar to her previous use of the lifeline, although in the latter stages of her period at home prior to admission to care in July 2011 she was apparently using the lifeline excessively during the day as well as at night. Ultimately, however, I am not persuaded that calling an emergency service because one feels the need to speak to someone in the middle of the night, without fully understanding that one has that need or the full implications of making the call, is indicative of a lack of capacity to decide where one lives.

 

    1. Another factor which features strongly in the local authority’s thinking is KK’s failure to eat and drink. Here again, however, I conclude that more could be done to address this issue by written notes and reminders, and by paying greater attention to KK’s likes and dislikes. KK is not the only older person who is fussy about what she eats and drinks.

 

    1. I do not consider the fact that KK needs to be helped about overusing the lifeline, or reminded to eat and drink regularly, carry much weight in the assessment of her capacity. Overall, I found in her oral testimony clear evidence that she has a degree of discernment and that she is not simply saying that she wants to go home without thinking about the consequences. I note in particular that for a period earlier this year she elected not to go on her daily visits to the bungalow because of the inclement weather. This is, to my mind, clear evidence that she has the capacity to understand and weigh up information and make a decision. Likewise, I consider her frank observation that “if I fall over and die on the floor, then I die on the floor” demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. I venture to think that many and probably most people in her position would take a similar view. It is not an unreasonable view to hold. It does not show that a lack of capacity to weigh up information. Rather it is an example of how different individuals may give different weight to different factors.

 

The Court did, however, and this is illustrative of the problem I have blogged about before, of what the heck a deprivation of liberty really is, determine that KK’s liberty had not been deprived. So even though she did not want to stay at STCC and had had to do so, her liberty was not being deprived.  I echo what’s previously been said by the Courts on the DOLS issue, that it is extremely unfortunate that a law intended to help the most vulnerable in society has now become so impenetrable that no lay person (or indeed many lawyers) can really look at a set of circumstances and call correctly whether there has been a deprivation of liberty or not.

    1. This case illustrates the importance of the fundamental principle enshrined in s. 1(2) of the 2005 Act – that a person must be assumed to have capacity unless it is demonstrated that she lacks it. The burden lies on the local authority to prove that KK lacks capacity to make decisions as to where she lives. A disabled person, and a person with a degenerative condition, is as entitled as anyone else to the protection of this presumption of capacity. The assessment is issue-specific and time specific. In due course, her capacity may deteriorate. Indeed that is likely to happen given her diagnosis. At this hearing, however, the local authority has failed to prove that KK lacks capacity to make decisions as to where she should live.

 

  1. It will now be for the local authority and KK to discuss what happens next. It is not a matter for me to determine or even advise. One course may be for the local authority to put together a proposal for a series of trial overnight visits, with all necessary support, to enable KK to experience being back in the bungalow at night so that she can reach a decision whether she in fact wishes to move back. During that process, the local authority would doubtless be monitoring her capacity, and may of course return to this Court if it concludes that she no longer meets the functional test. But before doing so, it must be careful to ensure that it complies fully with the statute and Code of Practice, taking all practicable steps to enable KK to make decisions for herself.

 

 

“That’s all we do, isn’t it? Look at things and try new rules?”

-         Ernest Hemingway (nearly) 

A consideration of the private members bill about Family Justice

 

 

I came across John Hemming MP’s draft family justice bill, which will be put forward as a result of him winning the ballot to put forward a Private Members Bill, and felt it was appropriate to write about it.

 

Not because it will necessarily become law  (very, very few Private Members Bills make it to Acts, because they don’t have the force of the parties and whips behind them)

 

Nor because I want to coruscate or ridicule it.

 

But because, at a time when Family Justice Review is dominating the thoughts and actions of professionals, it seemed to me appropriate to look at how one of the staunchest critics of the current system would want to change it. 

 

Just because someone has different and firm views with which I disagree  (in a nutshell, I think miscarriages of justice in family law are tragic but rare, and John Hemming thinks they are relatively commonplace – we’re entitled to have different views on that) , doesn’t mean that their ideas and suggestions are without merit, and I particularly wanted to see how John Hemming would want family law to change.  It seemed to me that his views would be a damn good place to start in working out what changes could be achievable, if one started with a blank sheet of paper.

 

I don’t agree with John Hemming on everything, but I applaud him without doubt for his sincere desire to make family justice better for those who are dragged into using it, and it is substantially easier to knock something down than construct it, so he earns my respect for putting together some proposals.

 

 

If you don’t listen to people who have had the roughest end of family justice, how can you genuinely reform it? I don’t say that you should slavishly follow their views, but the real voiceless in the Norgrove consideration of family law were the parents.

 

I doubt that many people, with the deluge of material we have to read, will have read the draft bill, but I found it genuinely interesting.

 

[Quick sidebar, the title quote above is actually “That’s all we do, isn’t it? Look at things and try new drinks”  and one that crops up regularly in a book I’ve just been reading called Boozehound, which is about cocktails and is fantastic. I particularly like the author for his insistence that vermouth is a crucial part of a martini, and all this macho “very dry, like open a bottle of vermouth in the next room” nonsense is actually just arising from people like Churchill and Hemingway who were functioning alcoholics and just drinking a very very cold glass of gin.  If you want to try the book, http://www.amazon.co.uk/Boozehound-Trail-Obscure-Overrated-Spirits/dp/1580082882/ref=sr_1_1?ie=UTF8&qid=1344446493&sr=8-1

 

 

Anyway, you can find the draft bill here:-

 

http://www.john.hemming.name/pmb/family_justice_bill_draft_bill.pdf

 

 

There were lots of things I really liked in this.  As a lawyer, there were lots of drafting issues I’d tighten up, and it is clearly a work in progress but the proposals contain good ideas. Drafting is the easy bit, coming up with ideas is the difficult part.

 

 (I would baulk at the idea that any party to court proceedings can bring up to 5 people in to court to support them, but think formally allowing people to be able to bring in some support is not a bad idea  – the Court would need to be able to control behaviour so that it did not descend into Jeremy Kyle territory, but wouldn’t it be better to have a default position that people can bring in a friend or relative to support them, and only exclude them if they misbehave, rather than assuming that they are inevitably going to be trouble-causers?)

 

 

1.  The proposals about grandparents  –  clause 2   

 

(3) Grandparents or siblings of parents, who are not parties to a case, shall

(a) be able to participate in that part of any proceedings which involves considering whether or not childrenshould be placed with them; and such people who have had care of children should not face detailedassessment unless their children have been subject to a child protection plan or care proceedings; and

(b) in the case of grandparents be permitted to participate in proceedings if they have had long term involvement with their grandchildren and have information which will be helpful to the outcome of the case.

(4) Grandparents shall be permitted to have reasonable direct and indirect contact with their grandchildren without this contact being supervised unless it is not in the interest of the welfare of the child

 

[I suspect that as a local authority lawyer, I ought to be against the idea of not assessing grandparents in detail, but I actually think that’s a proposal that’s worthy of consideration. If the grandparents don’t have visible or historical problems, shouldn’t we start assuming that they’re decent people? Why not speed up and slim down assessments by working on the premise that grandparents are prima facie a good thing, unless there’s evidence to the contrary?]

 

2. The addition of a principle that children in care should be placed near their family if possible – clause 2(5)

 

(5) Children not placed with their family should be placed as close as is practicable to their home authority.

 

[Though I would add, unless this would place them or the security of their placement at risk, I think it is an important and worthwhile thing to be included in any new Act]

 

3. The consideration of the conflict that necessarily exists between the Local Authority being responsible for providing for a child in care and at the same time investigating allegations of abuse that occur whilst in care.  The Bill suggests that Parliament should set up an independent body to investigate complaints of abuse to children in care. I think there’s no money for that, but it doesn’t make it a bad idea.

 

4. Establishing that being, or having been in care during your childhood should be a category covered by the Equality Act. 

 

 

5. Proposed amendment to the Adoption and Children Act

 

 4. Amendment of the Children and Adoption Act 2002

After section 52(1) of the 2002 Act there shall be inserted

“(1A) Where a judge is of the opinion that parental consent may be dispensed with pursuant to subsection (1) (b) he must

(a) in his judgement explain how he has considered the requirement of section 1 (4) of this Act; and

(b) then only make an order placing a child in the care of a local authority after considering whether it is possible and in the interest of the welfare of the child to place the child with one of his relatives.”

 

I think every judge I’ve ever been before already does that, but I can’t see that it hurts to have it as a statutory requirement. If there’s doubt that it is being done, then make it mandatory.

 

 

6. A statutory duty for the LA to act so that the child’s welfare is paramount

 

6. Children and Parents: Duties of local authorities and other bodies

(1) When a local authority or other body carries out any functions or makes any decisions in connection with the upbringing of a child, the child’s welfare shall be the paramount consideration.

(2) In respect of subsection (1), the local authority or other body must act on the presumption that the child’s welfare is best served through having access to and contact with both parents and grandparents sufficient to enable him to have a meaningful relationship with both parents and grandparents unless in the opinion of the court such contact is not in the interests of the welfare of the child and that information about the child should be provided to both parents.

 

 

Again, I think that most Local Authorities do this as a matter of good practice, but I would have no problem with this being enacted.

 

 

7. Greater scrutiny for the office of the Official Solicitor

 

 

 

Where I start diverting is :-

 

 

The right of all parties to proceedings to record them  (I see the purpose of it, but think it would be misused massively.)

 

The right of a person who has been deemed to lack litigation capacity to appeal this and to appoint a person of their choice to assist them  (again, I see where the idea of this is going, but the difficulty is that if you are establishing that someone doesn’t have capacity, they don’t then have capacity to make such a decision).  

 

This was the very issue that got John Hemming into hot water with Mr Justice Wall in  RP v (1) NOTTINGHAM CITY COUNCIL (2) OFFICIAL SOLICITOR (2008) [2008] EWCA Civ 462   (though he was clearly making an important point in that case about a person who was denied the opportunity to fight her case because she was vulnerable)

 

I do see where John Hemming is coming from with this – it doesn’t sit comfortably with me when a parent who lacks capacity is saying that they want their children back, but aren’t able to run that case because the Official Solicitor takes the view that they aren’t able to.  That requires a bigger consideration of litigation capacity, however. I would not be against a policy whereby the day to day conduct of litigation is run by the O/S, but the parent is able to communicate to the Court through their solicitor or counsel what their wishes are on the big issues of placement and contact.

 The bill’s proposal for a tweaked test on capacity seems, to me, not unreasonable. People should be allowed to make bad, foolish or downright stupid decisions, providing they are not causing themselves harm in doing so. If the decisions fall within a range of reasonable possible decisions  (i.e it is reasonable to eat salad, or chips, or rice, but not to eat glass) then it seems to me appropriate that a person be allowed to make such decision, even if they would, or could have made a better one

 

13. Ambit of Reasonableness in Capacity

Any person who, in the assessment of their capacity to make a decision, proposes to make a decision that is within the ambit of possible reasonable choices shall be deemed to have capacity for the purposes of that decision notwithstanding that they would otherwise be found incapacitous, unless it would on balance of probabilities cause them serious harm, whether immediately or in the future.

 

 

I have to say, I was surprised, although I strove hard to have an open mind when reading the draft bill, how much of it I found sensible or unexceptional. I thought it would go further, and I almost wish that it had.  If this is all that it takes to placate one of the staunchest critics of the family justice system, I would be prepared (were I an MP, to vote for very much of it, and object to relatively little)

 

I actually wish John Hemming luck with it.

 

It probably would produce a fairer family justice system than the as yet unpublished bill that I suspect is heading our way, which will make a mockery of the sentiment that “Finality is a good thing, but justice is a better one”

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